M/S. Controls & Switchgear Company Ltd. vs M/S. Daimlerchrysler India Pvt. Ltd. on 17 September, 2007

[Cites 2, Cited by 11]

National Consumer Disputes Redressal

M/S. Controls & Switchgear Company Ltd. vs M/S. Daimlerchrysler India Pvt. Ltd. on 17 September, 2007

NATI0NAL CONSUMER DISPUTES REDRESSAL COMMISSION

NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

Original Petition No. 9 of 2006

M/s. Controls & Switchgear Company Ltd.,

Regd. Office: 222, Okhla
Industrial Estate,

Phase-III, New Delhi-110 020 Complainant

Versus

.1. M/s. Daimlerchrysler India Pvt. Ltd.,

(A Company
of the Daimlerchrysler Group)

Regd. Office: Sector 15-A, Chikhali,

Pimpri, Pune-411
018.

.2. M/s. T &
T Motors Ltd.,

212, Okhla Industrial Estate,

New Delhi-110 020.
Opposite Parties

BEFORE:

HONBLE MR. JUSTICE M.B.SHAH,
PRESIDENT.

MRS. RAJYALAKSHMI RAO, MEMBER.

For the Complainant : Mr. Arun Khosla and

Ms. Shreeanka Kakkar,

Advocates.

For the Opposite Parties : Mr. M.S. Pandit
and

Mr.
Vineet Maheshwari,
Advocates

Dated the 17th September, 2007

O
R D E R

M.B.SHAH, J. PRESIDENT

The
questions which arise for consideration in this case are if one of the most
luxurious brand of the car, namely, the Mercedez-Benz,
which is represented as the Worlds finest automobiles built on a simple
principal even the best can get better, gives trouble
within the three months from the
date of its purchase, would a consumer
be satisfied by such a car? And, whether he is entitled to replacement
of the vehicle or refund of the purchase price?

As
it is claimed that the Mercedez Benz is not just about building a safe car, but it is about making the road a safer place, in our view,
the consumer/purchaser would not be satisfied with the said car, which requires
repeated repairs, and the consumer is entitled to get replacement or refund of
the purchase price of the car.

Contentions of the
Complainant:

M/s.Controls & Switchgear Co. Ltd., has filed this
complaint alleging that the two Mercedez-BENZ cars
purchased by them are having manufacturing defects including over-heating of
the center hump (which is uncured since purchase), and, therefore, prayed that
the Opposite Parties be directed to
replace the vehicles of the same brand, or, in the alternative, refund the sum
of Rs.1,15,72,280/- with interest at the prevailing market rate from the date
of the said payment till the date of its refund; and, to compensate the
Complainant Company for the mental agony suffered as a result of the Opposite
Parties stubborn recalcitrance in attending to a palpable engineering defect
of over heating.

It
is the say of the Complainant that the two Mercedez-BENZ
cars, i.e., DL-5CR-0333 and DL-9CV-5555 were purchased by the Complainant on
31.3.2003. In respect of vehicle No.DL-5CR-0333 it is pointed out that since
28.6.2003 the Complainant was writing letters to Opposite Party No.1 for
rectifying various defects, especially the one with regard to center hump
heating, which has not been cured. On 2.7.2004, the Opposite Party No.2
required the Complainant to keep the center hump under observation over a
longer distance and report in case of any abnormalities. The Complainant vide
his letter 3.12.2004 informed Opposite Party No.1 that in response to the suggestion/observation
of one Mr.B.Appeltauer, the representative of the
Opposite Party No.1, the Complainant had adjusted the vents of the
air-conditioning and went to Haridwar. He did not
observe any discomfort during the onward journey performed between 6.00 am to 10.30 am; but, while returning at 4.30 pm to 6.00 pm, the problem persisted.

In
the said letter dated 3.12.2004 the Complainant also mentioned that the other
Car bearing Registration No.DL9CV 5555 does not give any such problem. The
relevant portion reads as under:

Along with my car, we
brought another car for my brother under the registration No. DL9CV 5555. This car does not give any such problem. This
was confirmed by my brother who was traveling with me in the car yesterday
and who also found it extremely uncomfortable with the heating of the floor and
the back. In fact, his camera lying in the pocket behind the armrest was heated
to touch when he picked it up on arrival.

Thereafter, on 22.12.2004 the Opposite Party
No.2, the Dealer, in response to the letter of the Complainant dated
25.10.2004, informed him that they (Opposite Party No.2) decided to replace the
exhaust pipe, and, requested the Complainant to send the car bearing
No.DL-5CR-0333 anytime suitable to the Complainant so that the work could be
carried out. The Complainant states that the Opposite Party No.1 failed to
rectify the defect in the car, but extended warranty till 31.3.2006.
Thereafter, on 24.1.2005, the Opposite Party No.1 changed the exhaust pipe
and inserted an additional heat insulation between the
propeller shaft and the tunnel of the underbody. In spite of these changes,
the vehicle could not be made defect-free.

The
Complainant also submitted that the Opposite Party No.1 has recalled 1.3 million
cars, in other countries, i.e. in Europe, including SL
Class, switch engines in some models and started providing two year full
service warrantee to disgruntled owners. In this regard the Complainant place
reliance on the Times Magazine, wherein it is mentioned as under:

.. The profit drop at Mercedes follows
its admission earlier this year that the luxury cars, historically known
for their reliability and steady earnings, were prone to breakdown.

With
regard to the second car, i.e. DL-9CV-5555, the Complainant contends that even
it was having the same problem. It is the say of the Complainant that this
vehicle had not been taken on long journeys for the last two years and hence
the problem of over-heating of the rear cabin in the said vehicle had not
occurred and hence, the Complainant Company had made no complaint in respect of
the said vehicle. The Complainant, in its letter dated
20.1.2005, requested the Opposite Party No.1 that in view of the replacement of
door locking system, turn locking system besides frequent reporting of
vibration in the car (i.e. No.DL-9CV-5555), the warranty of this car (i.e. No.DL-9CV-5555) may be extended till 31st March, 2006, as has been done in
the other Car, i.e. DL-5CR-0333. The warranty was duly extended vide Opposite
Party No.1s letter dated 3.2.2005.

It
is the further say of the Complainant that the long distance test run of both
the vehicles conducted on 21.8.2005 revealed that not only the afore-mentioned
first vehicle, i.e. DL5CR0333, but also the second vehicle bearing Registration
No.DL-9CV-5555, which had not been plied on a highway till the said date, was
suffering the same engineering defect manifested in excessive unbearable
heating on the floor of the rear cabin. It was not merely the subjective observations
of the engineering representatives of all the parties but also as per the
temperature measurements taken by using the most sophisticated instruments.

Hence, the
aforesaid prayer is made for replacement of both the cars or
refund the full price of the cars.

Contentions of the Opposite
Party No.1:

In
response the complaint, the Opposite Party No.1 states that:

.1. The
Cars in question are purchased by the Complainant for commercial purpose, and,
hence, the Complainant Company cannot be regarded as a consumer under the
provisions of the Consumer Protection Act, 1986.

.2.
The grievance of the Complainant
was limited only the Car No.DL-5CR-0333, and not for both the cars, because,
since the beginning, his grievance and correspondence with the Opposite Party
were pertaining only to Car No.0333.

.3.
The Complainant has refused to get the vehicles to be tested by the ARAI, as
per the provisions of Sec.13 of the Consumer Protection Act, 1986, and, hence,
adverse inference should be drawn against the Complainant.

.4. The hump portion of the vehicles is always warmer more so when
the ambient temperature is quite high as much as 35 to 36 degree Celsius and
the components such as exhaust, propeller shaft, silencer, catalytic converter,
etc. which by their very nature attain high temperature pass through the hump.

The
Opposite Party No.1 also stated that the expatriate technical specialist who
was testing the floor temperature of the second car has observed that the
Complainants representative who was sitting in the car was preventing the flow
of cool air by blocking the air vent with his feet. He has also filed an
affidavit to that effect.

.5. There
was no defect in the cars as the Complainant had used the cars for more than
41,000 and 44,000 kms., as on 7.10.2006, i.e. within a period of three-and-half
years.

.6. In
the opinion of Mr.Balraj Bhanot,
former Director of ARAI, the vehicles in question are so designed that it is
comfortable to passengers and are well suited for long travel as well.

.7. The
Opposite Party no.1 was ready to refund the present market value of the used
cars against the return of the cars. But, the Complainant disagreed to this
proposal.

.8. An
offer was made to provide additional insulation with a view to take care of
customers concerns or to buy back the car at present market value or book
value/depreciated value was made vide application dated 17.1.2007 which was not
accepted by the Complainant.

Similar
are the contentions of the Opposite Party No.2.

Findings:

.I. The first question which requires
consideration is :

Whether the
cars were purchased for commercial purpose?

In
support of this contention the Opposite Parties submit that:

.(i). The Complainant Company claimed and is
claiming depreciation on the cars;

.(ii). the Complainant Company has used the corporate resources for
purchase of cars;

.(iii). Drivers
are engaged by the Company and the Company spends for the fuel used;

.(iv). A Company
is a distinct legal entity. It cannot be disputed that the cars enhance
mobility and depreciation has direct bearing on the profits earned.

.(v). The cars are
being used for commercial purpose; and,

.(vi). The Company
is not a consumer in so far as the cars purchased by it.

In
our view, there is no substance in the aforesaid contention, because:

.(i). Company is a legal entity and is entitled to file complaint;

.(ii). The cars
are purchased for the use of the Directors and are not to be used for any
activity directly connected with commercial purpose of earning profit. Cars are
not used for hire but are for the personal use of the Directors. Hence, it
cannot be said that the Complainant Company has purchased the cars for
commercial purpose.

.II. Whether the Complainant has
proved that the cars having mechanical defects and also there is overheating of
the hump?

.(A). For
deciding the said question reference to various letters would be sufficient.

It
is to be stated that within three months of the purchase of the car No.DL-5CR-0333
the Complainant reported to the Opposite Parties various defects in the said
Car. We would narrate the same one by one to highlight the fact that the
defects were noticed within three months of purchase of the luxury costly cars.

.(i). The first complaint with regard to the
troubles given by Car No.DL-5CR-0333 is dated 28.06.2003, wherein the
Complainant has stated that in about six weeks after having bought the car, he
had gone on a long drive to Chandigarh
and Dehradun from Delhi.
During the return journey, he noticed that the car interior was not cooling
well and hence he had to lower the temperature and increase the fan speed for
comfort. Then, he observed that the center hump on the floor over the drive
shaft was excessively heated and particularly so on the left side of the center
hump. Then he sent the car to the Opposite Party No.2 for check up.

The
Opposite Party No.2 reported that nothing unusual was observed.

Then the Opposite Party No.1 vide its letter dated
21.8.2003 informed the Complainant that Mr.Appeltauer
checked the reported complaint of heating of the floor above the drive shaft in
the rear seating area, and, during inspection the area was observed to be
warm, but, it is not a defect, and further informed that the routing of the
exhaust pipes and the insulation shields were checked and found to be OK.

.(ii).
Thereafter, vide letter dated
17.12.2003, the Complainant ventilated the following grievance:

My above referred car (i.e. Car No.DL-5CR-0333) is being sent for its
first service on 18th December, 2003 morning. Besides the various
checks of all operations in the car due at the time of first service, I would
particularly like you to check the following and confirm that the same have
been attended to and are in order:

.1. The rear luggage boot does not lock
properly and hence when sent earlier for repair, it was informed that some component need replacement which was not in stock and
has to be obtained from Pune. I am told that this has
been procured and, therefore, it should be fitted so that proper locking of the
boot takes place. The luggage boot cover also seems misaligned.

.2. The front left door locking motors does
not always operate. Some times ago it had totally stopped working and you
repaired it but after the repairs the functioning is not always there and
please, therefore, check this and replace parts, if any, required to
ensure flawless working of this facility.

.3. The air-conditioning filter appears
blocked since the flow of air from the front louvers at full speed of the
fan is not adequate. Please check the entire system.

.4. On rough and broken roads (which are plenty
after the monsoon in Delhi), I
observe that when the car is moving, it wobbles and the swing is substantial
particularly in the rear seat to the extent it is uncomfortable. Please,
therefore, check the suspension and shockers etc. for their desired operation
adequately, particularly for the rear.

.5. The consumption of the car is rather high.
On long drives we manage to get around 6 kms. to a liter but in the city it varies from 4.2 to 4.5 kms. max. per
litre. This is surprising since on the same roads with my earlier car
almost a 20 years old Mercedes 300 SEL, I was getting about 5.5 to 6 kms. a litre
in the city. Please check and adjust the car for suitable consumption.

.6. The operation of the cruise control lever
is not really felt have not really tried the cruise control but the distronic and speedtronic does
not seem to work. Could you please check this aspect and confirm its operation
and explain the same to my driver when he comes to collect the car?

.(iii). Thereafter, the Complainant addressed
another letter dated 30.4.2004 to Opposite Party No.1 bringing to his
notice the two problems, i.e. with regard to vacuum system of door locking and
insulation in the floor of the car.

He further mentioned in the said letter to the
following effect:

I was
once again on a long journey last week and I had switched ventilator fan for
the rear seat on the left and I noticed that from the center portion of the
seat from where the arm is pulled out, there was slightly warm air
feeling of some heat. This was reduced when the ventilator fan of the seat
was shut off but I noticed that the floor was quite warm to touch. Could you
please let me know what are the norms of temperature rise on the floor and
could you have my car checked for any leaks of air from the luggage boot into
the cabin through the middle of the seat? I am concerned because it is not the
peak of summer yet which we are fast approaching now. Please, therefore, treat
this as urgent.

In response to the above stated letter the Opposite
Party No.1 vide its letter dated 4.5.2004 replied that it would be impossible
for them to comment immediately on the reported matter. Hence, they were
seeking further details on the case from Opposite Party No.2, their dealer, and
requested the Complainant to bear with them for some time.

.(iv) The
Complainant, again, vide its letter dated 29.6.2004, addressed to the Opposite
Party No.2 making complaints with regard to the following defects in the car:

Please refer to our letter
dated April 30, 2004 and
your phone call to check if everything has been set right.

1. The problem with regard to the lock motors functioning is not totally
eliminated. You still hear during the drive some motor working in the rear
luggage boot but this problem is now occasional and not routine as it was
earlier once.

2. I do not know if anything has been done with regard to the insulation
in the dry shaft running in the middle of the car under the bump in the
center. I have not been on long drive for some time but last when I went in early May, the problem was there. Has
some insulation been provided or any other thing done when the car was given to
you?

3. Only yesterday I observed that when you switch on the air
conditioning, you first get hot air, which gradually cools down. This, I never
observed in the past. What could be the reason for this?

4. The car is pulling a lot on the left
on a level road. This needs your serious attention.

In
response to the above mentioned letter dated 29.6.2004, the Opposite Party
No.2, vide his letter dated 2.7.2004 replied as under:

We
take reference to your letter dated 29.06.2004 and the subsequent meeting with
the left undersigned had in your office along with Mr. Tarun
Dambal.

As discussed the car was checked at our
end for the four complaints reported by you.
Given below are the explanation of the work
carried out.

(1)
The noise from the Bootlid lock motors as reported by you was checked and no
abnormalities found.

(2)
The insulation in the tunnel area
was checked up and was found to be OK and trials revealed no transfer of
heat into the passenger compartment.
However you could keep it under observation when you travel over a
longer distance and report this matter in case of any abnormalities.

(3)
The A/c control unit was found to
be defective, which has since, been ordered. We shall inform you immediately on receipt of
the same from M/s D.C.I.P.L.

.(v). Thereafter,
the Complainant vide his letter dated 25.10.2004, making the grievance of the
usual problem of heating of hump, also reported a new problem of appearance of
symbol Airmatic Stop, Car too low.
In this regard he stated that this problem was observed for the first time when
he was traveling from Mussoorie to Delhi during
the previous month, i.e. in the month of September, 2004; and also, on the day
before the writing of this letter, i.e. 24.10.2004, when he was on the way to
Hardwar. On both the occasions there were only two persons in the car, i.e. the
Driver and himself. In this regard he
enquires as to why this symbol appeared unless the vehicle control system was
faulty, and, hence sought the attention of the Opposite Party No.1.

In
the same letter, he has again, ventilated the problem of heating of floor/the
middle hump below the console fitted on it between the front two seats, which
problem has been reported since the purchase of the car, and, narrated his
experience of a long drive from Delhi to
Hardwar and back.

He
has also mentioned in the same letter that he had never experienced this
problem during the past 20 years in his 280 SCL which he owned earlier, and
also in the smaller cars like the Opel or the
Hyundai.

He also requested that the air conditioning system may also
be checked because he had a problem on that for which they had replaced the
thermostat, but, the discomfort which he had on 24.10.2004, (i.e. a day
before the writing of the letter), he had never experienced in city driving, as
it was really annoying for him which compelled him to write this letter.

Vide this letter a
further grievance was also brought to the notice of Opposite Party No.1 with
regard to defective lamps in the number plate, and requested the Opposite Party
No.1 to rectify the defect.

.(vi). The Complainant, again, vide letter dated
3.12.2004 repeated the same grievance, i.e. over heating of center hump, and
further stated that that Mr.B.Appeltauer
informed him that on account of the catalytic converter fitted underneath the
car, these cars do heat a lot. As
advised by Mr.B.Apppeltauer the Complainant adjusted
the vents of the air-conditioning and went to Hardwar on 2nd December, 2004. While
coming back from Hardwar, he found that the heating of the floor was unbearable.

And,
hence, demanded for replacement of the car with a new one, in view of the
serious manufacturing defects in the car.

Thereafter, the
Opposite Party No.2 asked the Complainant vide its letter dated 22.12.2004 to
send the car for replacement of exhaust pipe.

.(vii). Again, vide letter dated 7.1.2005 the
Complainant made the following grievances:

This
is to thank you for your kind visit in connection with the complaints of my
Mercedes car 350
SL Registration No. DL-5CR 0333.

(1)
The air-conditioning system
vis--vis the heat generated on long drives, particularly in the afternoon,
which has made car rides on long journeys impossible due to the discomfort.

(2)
The air-conditioning system, despite
changes of the thermostat etc. continues to be erratic. Now a days, when we
change the temperature setting from the front, the rear setting does not change
automatically as it used to happen earlier.

(3)
Some auxiliary motor keeps working
now and then and its sound can be heard in the rear left something to do with
your vacuum system perhaps, which has again been rectified, replaced several
times since the car was purchased.

.(viii). Vide letter dated 24.1.2005, the
Complainant repeated the same problem of over-heating of center hump which he
experienced while returning from Hardwar.

In the note
appended to that letter,
he also mentioned a new problem with regard to disc on the
music system and requested them to look into this problem.

.(ix). Thereafter, vide its letter dated
3.2.2005, the Complainant made his grievance to the following effect:

Whereas
they have assured that they have changed the pump which was causing mal
functioning of the luggage boot and rear door locks/motors and that they
have further carried out some repairs to the audio system where the CD was
stuck and in case this happens again, they would replace the audio system as
has been assured, the main issue of the car floor heating up excessively to
cause discomfort remains unresolved.

(1)
I have seen the reports of two cars
which were sent on long run of 200 kms.- my car as
well as another car with registration No.7000. The car floor temperature was 200 C when
the test run began and towards the end it was over 32.50 C.

(2)
The above results matched well with
the earlier study made by the erstwhile expert of Mercedes Mr. B. Appeltauer where he had found the temperature rise of 120
C and above and consequently he had got the exhaust pipes etc. changed
but with no improvement observed thereafter.

(3)
Mr. Marques pointing out that the
other car temperature also rose does not comfort me or assures me that all is
well in my car. At best therefore, it is
an indication of a basic design flaw in the car.

(4)
Mr. Marques and Mr. Bhattarcharya were kind enough to raise the car and show me
the two exhaust pipes with 4 catalytic converters and silencers etc. which caused a lot of heat coming from the
engines complete combustion to give the car the desired punch, power and
performance, which I agree but I am sorry, I am not convinced that such
performance should cause discomfort within the cabin to the passengers in any
car and more so in the luxury car that I had paid for.

(5)
A 120 C rise in
temperature is appreciable to cause discomfort and in the summers particularly
when the temperatures outside can go as high as 400 C and
above and perhaps road surface temperatures are more close to 500 C.
I am sure that Mercedes cars are designed to bear such condition, which are
not abnormal and yet provide the desired comfort with the performance for which
the customers pay.

To my mind, therefore, my complaint of
temperature beyond comfort level remains to be attended despite the fact
that the problem faced by me was seen in another car as well. My suggestion would be that both these cars
be replaced by M/s. Daimler Chrysier to demonstrate
this commitment to quality and customer care.

.(x). Thereafter, vide its letter dated
9.2.2005, the Complainant informed the Opposite Party No.1, as under:

I
have again been to Haridwar on Sunday along with my
brother and this time we used his car also a S-350 L
bearing registration No. DL9CV 5555, which was purchased at the same time as my car, referred
to above.

I
am surprised, though the ambient temperatures were relatively higher last
Sunday ranging between 150 C (when it was raining) to 18.50 C
in the evening, no discomfort was felt at all. However, I was checking the temperature rise
on the vertical walls of the hump and the floor as well as on the top surface
of the central hump and I noticed that the maximum heating that the run caused
was amounting to mild warming up of the vertical walls of the hump, more on the
left side. From this I conclude:

.(a). That there is
definitely a design deficiency in the car or else the car being assembled at Pune, since, in my opinion, there should be no warming
whatsoever but having said that admittedly the car DL9CV 5555 warming was not
to an objectionable level. Had I not been particularly checking, I would not
have noticed this warming up since there was no discomfort. This would,
however, have to be examined in the summer again.

.(b). in view of the above and the earlier reports regarding my
car DL-5CR-0333, there is definitely an acute and a more severe problem in my
car where, as I have explained to you, the discomfort level is substantial in
the winter as well and would be unbearable in the coming months as it had been
in the last summer.

I
am, therefore, concerned and want to do something about it by March latest so that
I can use my car comfortably in the summer.

Thereafter, in
response to the above letter dated the 9.2.2005, the Opposite Party No.1 vide
his letter dated 23.2.2005, states as under:

Mr.Lobo has inspected the subject vehicle for your reported
concerns on heating of the floor mat area near rear seats and no such
abnormality was observed, as also confirmed by Mr.Marques
during his last visit to New
Delhi.

Nevertheless,
conceding to your request to enhance the comfort level inside the vehicle to
your expectations, an additional heat insultion has
been inserted between the propeller shaft and the tunnel of the under body of Mr.Lobo. On completion of the same, Mr.Lobo
also had a joint test drive for 124 kms along with
your representative with A/c being kept switched off and the desired results of
these modifications were also confirmed by your representative. Thus, we are
confident about the performance of the vehicle during the summer with the A/c
system switched on.

.(xi) & (xii).
The Complainant, again, vide his letters dated 7.3.2005, 21.3.2005, ventilated
the same grievance with regard to the heating problem, and also demanded for
replacement of the vehicles in question.

In response to the
letter dated 7.3.2005, the Opposite Party No.1, vide its letter dated 30.3.2005
informed the Complainant that in view of repeated checks by their experts, they
found that the vehicles are free from defects and hence, regretted their
inability to replace the vehicles.

In brief, from the above quoted
correspondence exchanged between the parties, it appears that the vehicle was
having the following problems:

.(i). heating of hump which, according to
the Complainant, could not be rectified;

.(ii). the rear luggage boot does not lock properly;

.(iii). the front left door locking motors does not always operate;

.(iv). blockage of air-condition filter;

.(v). the car wobbles and swings substantially on rough roads;

.(vi). consumption of petrol of the car is high;

.(vii). the operation of the cruise control lever is not really
felt;

.(viii). the car is pulling a lot on the left on a level road;

.(ix). Appearance
of the symbol : Airmatic
Stop car too low;

.(x). in spite of changing the thermostat, the air-conditioning
system is not effective and it continues to be erratic; and,

.(xi). there was a problem with disc on the music system.

Thereafter, the
Complainant sent its legal notice to the Opposite Parties and hence filed this
complaint on 07.02.2006.

.(B). Report
of the Local Commissioners:

For
finding out whether there is any rise in the temperature inside the cars on
covering a distance upto 200 kms.,
at the request of the parties, we have appointed Local Commissioners, namely,
the Joint Registrar and the Deputy Registrar of this Commission. They have been accompanied by the
representatives of the parties and the temperature is recorded in both the
cars.

The
temperature recorded in respect of Car No.DL 5 CR
0333 is as under. The temperature of the running car was recorded at a distance
of every 50 kms.:

Sl. No.

Time

Kms.

Temp.
guage 1 of DCIPL (Degree)

Temp.
gauge 2 of C & S (Degree)

Ambient
(Degree)

8.30 am

43649

33.2

25.5

9.45 am

43699

38.6

30.5

10.45 am

43749

38.6

11.05 am

43759

39.5

12.40 pm

43799

38.6

1.55 pm

43850

37.3

Return Journey

7..

4.00 pm

43866

35.7

5.00 pm

43899

37.3

6.00 pm

43950

38.1

10.

7.50 pm

44000

38.1

29.5

11.

9.00 pm

44050

12.

10.00 pm

44083

38.2

29.5

Temperature
recorded from the thermometer installed by the Engineer of the Opposite Party,
i.e. M/s.Daimlerchrysler India Pvt. Ltd. in Car
No.DL-9CV-5555, is as under:

Chasis No. WDB220167 6A 326008 DL 9 CV 5555 Mr. R.Khanna

Time

Kms.

Temp

Ambient
Temp.

Start
time from T&T

1st 50 kms.

8.35 am

39743

26.5 9.45 am 39793 38.2 32.5 10.45 am 39843 39.8 33.0 Vehicle being stopped for breakfast at Chittal 11.05 am 39852 41.5 36.5 11.50 am 39852

36.5 Start at Chittal 12.50 39902 42.7 33.5 02.15 pm 39952 44.0 36.0 Halt at Haridwar 02.30 pm 39959 45.6 36.5 Start time from Haridwar 04.00 pm 39959

36.5 5.20 pm 40009 44.6 35.5 6.15 pm 40059 46.7 30.0 Halt at Chittal 6.30 pm 40066

31.5 Start from Chittal 7.05 pm 40066 31.5 8.25 pm 40166 45.4 28.5 9.45 pm 40167 47.9 32.0 End of Test at T&T Okhala 9.55 pm 40175 47.2 31.5 Temperature recorded from the thermometer installed by the Engineer of the Complainant, ie. M/s. Controls and Switchgear Co. Ltd.

DL 9CV 5555 Chasis No WEB 220167 A326008 .

Time Kms Temp Gaguge 1 (By DCIPL) Temp Gauge 2 (By C&S) Remark (Degree) Ambent Temp.

Back from Haidwar 4.00 39959 36.5 32.0 36.5 5.20 40009 44.6 48.0 18 31.5 Chittal 6.15 40059 46.7 48.0 20 30.0 Stop 6.30 40066 47.0 48.0 31.6 Stay 7.05 40066 45.0 38.0 20 31.5 Muradnagar 8.25 40116 45.4 49.0 18 28.5 Delhi 10.00 40175 47.2 50.00 18 31.5 On comparing both the charts, there is a minor difference in the temperature which might be the exact placement o the knob of the meter. The temperature shown by both the meters is higher than the Ambient Temperature on all the points except from the starting point.

As against this, the learned Counsel for the Opposite Parties have relied upon the affidavit of Mr.Balraj Bhanot, former Director of the ARAI. Some portion of the said report is as under:

.(c). Report of Shri Balraj Bhanot, former Director of ARAI:

General:

This Technical Report is based on the documents / information provided by Daimler Chrysler India (DC India), my visit to DC Indias factory at Pune, discussions with various officials of DC India, test drives of S-Class vehicles and my experience and knowledge in automobile field for past several years. I have carefully considered the disputed question whether the temperature of the hump recorded during the long run is abnormal or uncomfortable for the passengers traveling in the Mercedes-Benz car. My report is consisting of General Observations and also outcome of the test drive conducted with specific reference to the temperature of the floor/hump in the rear left passenger foot wall of Mercedes-Benz and other car models.

General observations:

- This is a subjective matter and there are no standards prescribed under CMVR (Central Motor Vehicle Rules) which manufacturers are supposed to comply with. One is also not able to find similar rules or regulations prescribed by WE-29 the UN body which is engaged in harmonizing international automobile standards on various parameters on safety and emission nor any work is going on at the moment.

..

Conclusion:

Based on my knowledge and vast experience in the filed of automobile, I can say with confidence that the vehicle in question is also designed that it is comfortable to passengers and is well suited for long travel as well. One should allow the full flow of cool air coming out of the air vents fixed at the floor under the seat to have their appropriate cooling effect at the desired spots.

Further, based on the aforesaid facts, it is concluded that the temperature in the desired comfort zone at the rear seats of Mercedes-Benz S-Class car, while sitting in standard postures, is within reasonable limits when one permits the flow of cool air as the designed systems provide.

In our view, the aforesaid report submitted by the expert, Mr.Balraj Bhanot, is general in nature. He does not specify that he has noticed temperature or the hump when the cars were in motion on a long distance. As against this, the reports of the Local Commissioners specifically state that there was high temperature on the hump and the temperature chart is quoted above. If the temperature on the hump of a Mercedez-BENZ, which is one of the costliest cars, increases during long journeys, then it can be said that it is not free from defects.

In addition to the report of Shri Bhanot, the Opposite Parties also submitted their report dated 28.8.2006 on the test drive which was conducted on 21.8.2006 in terms of the orders dated 10.8.2006 of this Commission. In the concluding portion, the report states that:

Conclusion:

Based on the above facts and considering the high ambience temperatures of 35 to 36.5 degree C on 21.8.2006 and the distance covered by the vehicles, it is concluded with certainty that the foot well temperature as recorded by DC India (Respondent) was meeting the comfort requirements of the occupants of both the Mercedes-Benz vehicles.

At this juncture it is to be stated that when the matter was being heard on 25.9.2006 the opposite parties, in terms of the provisions of Section 13 of the Consumer Protection Act, 1986, prayed that the vehicles were to be examined by the expert body, namely, ARAI. But, that suggestion was not accepted by Complainant and he submitted that the matter might be decided on the basis of the evidence which is produced on record. He further submitted that the only offending part of the vehicle is the left hand portion of the hump of the rear cabin. He has further pointed out that by sitting in the car, this can be verified easily and for that no expert is necessary. In this view of the matter, we appointed the Local Commissioners.

Luxurious Car as stated by the Complainant:

In the complaint it has been stated that the Opposite Party No.1 had with regard to its Mercedes-BENZ S-Class sedan (Saloon) made the following representations through brochures, newspaper advertisements and oral communications by their marketing personnel:

Its not about a car.

Its about the finest automobile in the world The Mercedes-Benz among Mercedes-Benzes Its not just about reaching the destination.

Its about getting the maximum out of your journey.

Its not just about building a safe car.

Its about making the road a safer place.

Its not just about unleashing raw power.

Its about harnessing it.

Its not just about making heads turn.

Its about leaving a lasting impression.

Its not just about meeting environmental standards.

Its about setting them.

For the worlds finest luxury car, delivering superlative standards of performance, safety and comfort is necessary, but not sufficient. It must do all this with the least disturbance to the ecological balance. And that is exactly what the Mercedes-Benz S-Class does.

The S-Class draws upon the rich experience of extensive research into reducing the environmental impact through new, ecologically responsible car manufacturing techniques. For instance, no CFCs are used in the air-conditioning. Conventional materials have been replaced by wood fibers, cotton, cellulose, flax, sisal and coconut. All theses efforts and innovations combine to give some very pleasant results.

S-CLASS The worlds finest automobiles is built on a simple principle; even the best can get better.

Because it competes constantly with itself, the Mercedes-Benz S-Class is beyond all competition.

Whether its safety, comfort, performance, aesthetics or eco-friendliness, the S-Class stretches the definition of the term excellence. If you think you deserve the finest automobile in the world, think no further than the Mercedes-Benz S-Class.

As against this, the Opposite Parties, in their reply, have not denied the authenticity of the advertisement/brochure, relied upon by the Complainant. But the Opposite Party Nos.1 and 2 merely submitted that the problems, if any, faced by the Complainant were operational in nature and were attributable to nature of use and improper road conditions. Further, quite a few complaints were more misconceptions and those complaints were attended by the authorized dealer i.e. Opposite Party No.2 In our view, the constant grievances of the Complainant that the central hump was being getting heated on long journey cannot be ignored. These facts are established by the complaints made continuously by the Complainant as well as the temperature noted by the Court Commissioners.

From the facts stated above, with regard to Car No.DL-5CR-0333 it is apparent that various defects were noticed by the Complainant within a period of three months of its purchase. Repeated letters were written to the Opposite Parties for removal of the defects. Till the date of filing of this complaint, the Complainant has written letters on 11 occasions, i.e. on 21.06.2003; 30.04.2004; 29.06.2004; 25.10.2004; 3.12.2004; 7.01.2005; 24.01.2005; 3.02.2005; 9.02.2005; 7.3.2005; and, 21.3.2005, with regard to the over-heating of the hump, but this defect is not removed, and, that is noticed by the Local Commissioners appointed by this Commission.

In this set of circumstances, would the consumer be satisfied with the luxurious car which is expected to give the maximum comfort, as claimed by the Opposite Parties in their brochures, but creating trouble all throughout? In our view, this cannot be permitted. Because it is not disputed that the vehicle is luxurious and is expected to give all possible comforts to the consumer/purchaser. After paying a large amount, the consumer would not be satisfied with the vehicle, if it gives constant trouble.

As per the Times global Business Magazine report 1.3 million cars were withdrawn by the manufacturing Company. This withdrawal of the cars was made in the other countries. In the said magazine a question was posed: Can Mercedes Be a Star Again? It was also printed on the cover page The German automaker is in the middle of a massive overhaul to restore the quality of its vehicles and reinvent itself. The relevant portion is as under:

Those problems began in earnest after Mercedes launched its E-Class series in 2002 only to face a barrage of complaints about cars that didnt start or kept breaking down. The company quickly realized the model had some serious flaws, and moved aggressively to fix them. More than 200 teams of engineers ripped the car apart to identify and overcome the troubles, which included design and production snafus in complex electronics systems. The firm this year recalled 1.3 million cars, including C-Class and SL-Class as well as E-Class models built between 2002 and 05, took back the lemons, switched engines in some models and started providing two-year full service warranties to disgruntled owners. In the process, the brand was rebuilt its quality-control management and now says the autos it builds are the best and most reliable it has ever made. Such claims are partly borne out by the latest J.D. Power short-term reliability surveys.

But the cost of the firms once stellar reputation has been devastating. Mercedes has slid dramatically in consumer rankings over the past two years, especially in the U.S., its biggest foreign market, accounting for 20% of sales. Four models show up in Consumer Reports list of the worst used cars Withdrawal of the cars was made in other countries. Therefore, it would be difficult to finally pronounce that the same would be applicable to the model of the car purchased by the Complainant. However, we would add that in India we have developed the tendency not to accept the defects, and, to encourage litigation by one or other defence and take undue advantage of delay in disposal.

In the present case, we can say without hesitation that if the car is defective, may be, on one or other count but that would not give any satisfaction to the consumer who has spent large amount for its purchase. Non-replacement of the vehicle in these set of circumstances, would tantamount to unfair trade practice.

Conclusion:

Hence, it is required to be directed that the Opposite Parties shall replace Car No.DL-5CR-0333 with a new car of the same or similar model; or, in the alternative refund its full purchase price, namely, one half of the amount of Rs.1,15,72,280/-, which was paid by the Complainant to the Opposite Parties for the purchase of the two vehicles in question, and take back the vehicle.

For the second car, i.e., Car No. DL-9CV-5555, it is to stated that there was no problem with the vehicle upto 21.8.2005. However, on long distance test run, it is revealed that the said vehicle, which had not been plied on a highway till the said date, was suffering the same engineering defect manifested in excessive unbearable heating on the floor of the rear cabin. That is, for a period of around two-and-half years there was no problems with the vehicle. The only defect which is pointed out with regard to this vehicle is over-heating of the central hump. For this purpose, in our view, it would be just and proper to direct the Opposite Parties to remove that defect, if possible, within a period of six weeks from the date of receipt of a copy of this order. In the alternative, if the defects are not removed, as stated above, the Opposite Parties shall refund 50% of the amount of the purchase price against the return of the car, because the car was used for 2 years and 11 months before filing of this complaint on 7.2.2006, However, considering the facts and circumstances of the case, particularly the fact that the Complainant has used both the cars till today, we are not inclined to award any compensation as claimed or cost of litigation.

In the result, the complaint is partly allowed. It is directed that (i) Opposite Party Nos. 1 and 2 shall replace Car No. DL-5CR-0333 with a new car of the same or similar model, or in the alternative they shall refund the purchase price of the same, namely, Rs.58 lakhs approximately (one-half of the purchase price of Rs.1,15,72,280/-of the two cars); and (b) for the second car DL-9CV-5555 the Opposite Parties are directed to remove defect of over-heating of the Central Hump of the car on the long journey, within a period of eight weeks from the date of this Order, or, in the alternative to refund 50% of the amount of purchase price namely, Rs.29 lakhs, against the return of the car. The complaint stands disposed of accordingly.

The Complainant shall pay Rs.5,000/- to each of the Local Commissioners appointed by this Commission.

Sd/-

.J. ( M.B.SHAH ) PRESIDENT Sd/-

(RAJYALAKSHMI RAO) MEMBER.

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National Consumer Disputes Redressal

M/S. Controls & Switchgear Company Ltd. vs M/S. Daimlerchrysler India Pvt. Ltd. on 17 September, 2007