State Consumer Disputes Redressal Commission
M/S Hind Motors (India) Limited, vs Jodh Singh on 26 September, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1331 of 2010.
Date of Institution: 30.07.2010.
Date of Decision: 26.09.2012.
1. M/s Hind Motors (India) Limited, B-16, Industrial Area, Phase-2, Mohali
through its Manager Legal Sh. Gurdip Singh.
2. M/s Hind Motors (India) Limited, Registered Office: 15, Industrial Area,
Phase-I, Chandigarh through its Manager Legal Sh. Gurdip Singh.
.....Appellants.
Versus
1. Jodh Singh S/o Mangal Ram, R/o Village Nichli Sandholi, P.O. Baddi,
Tehsil Nalagarh (H.P.).
2. M/s Fiat India Automobiles Limited, B-19, Ranjangaon, MIDC,
Industrial Area, Ranjangaon, Taluka Shirur, District Pune.
3. United India Insurance Company Limited, Regional Office, SCO
No.149-150 (First Floor), Sector 8-C, Chandigarh.
...Respondents.
First Appeal against the order dated
01.07.2010 of the District Consumer
Disputes Redressal Forum, SAS Nagar,
Mohali.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Baldev Singh Sekhon, Member.
...................................
Present:- Sh. P.K. Kukreja, Advocate, counsel for the appellants.
Sh. Rajiv Gupta, Advocate, counsel for respondent no.1. Sh. Ramesh Kumar Bamal, Advocate, counsel for respondent no.2.
Sh. Sukaam Gupta, Advocate for respondent no.3.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
This order shall disposed of two appeals i.e. First Appeal No.1331 of 2010 (M/s Hind Motors (India) Limited & Anr. Vs Jodh Singh & Ors.) and First Appeal No.1404 of 2010 (Fiat India Automobiles Limited First Appeal No.1331 of 2010 2 Vs Jodh Singh & Ors.), as both the appeal are directed against the same impugned order dated 01.07.2010 passed by the learned District Consumer Disputes Redressal Forum, SAS Nagar, Mohali (in short "the District Forum"). The facts are taken from First Appeal No.1331 of 2010 and the parties would be referred by their status in this appeal.
2. Facts in brief are that Sh. Jodh Singh, respondent no.1/ complainant (hereinafter called as "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellants and respondents no.2 & 3, asserting that he purchased Fiat Linea Diesel from Hind Motors India Limited, Mohali for a sum of Rs.7,22,489/- on 10.02.2009 after taking a loan of Rs.5.00 lacs from Jogindera Central Coop. Bank, Baddi. The said vehicle was insured with United India Insurance Company Limited, respondent no.3 and the insurance was valid from 11.02.2009 to 10.02.2010.
3. Appellant no.1 gave assurances to respondent no.1 that if any problem occurs in the vehicle, it will be rectified and if there is any manufacturing defect or vehicle meets with an accident, then the claim will be paid through their surveyors.
4. From the very beginning of the purchase of the vehicle in question, it was not working properly and respondent no.1 was not satisfied and he visited Hind Motors and complained several defects in the vehicle and the same were rectified because the vehicle was within warranty period. The respondent no.1 paid Rs.2666/- on account of repairs done by the appellants and on 03.11.2009, respondent no.1 again went to appellant no.1 and after inspection of the vehicle, filtering EL and Air filter Element-Rene-W were replaced and Rs.313/- were charged and it was assured that now the vehicle will ply properly, but the vehicle in question again developed the problem of poor pickup. Although, it was persisting from the very beginning, but on 25.11.2009, it got aggravated and respondent no.1 took the vehicle to the First Appeal No.1331 of 2010 3 appellants and it was found that Turbo Charger is either to be replaced or repaired.
5. Thereafter, the vehicle developed more serious problems and it did not start and again the vehicle was taken to the appellant on 30.12.2009 and was left with the appellant, but nothing was done by the appellant and on 12.01.2010, respondent no.1 again went to the appellant and inquired about the status of the repairs, but he was told that there is dent in engine oil slump and the repair cannot be done within warranty period. Respondent no.1 was shocked to know about this fact as there was no dent in the car and the car never met with any accident. The appellants have themselves inspected the vehicle twice including on 30.12.2009 and no such defect was pointed out, but in order to avoid replacement of defective parts, they concocted this story. The vehicle has run 12975 kmts. only and the second service is due after 12 months or after 15000 kmts., but appellant no.1 has failed to repair/replace the defective parts of the vehicle within the warranty period and there is deficiency in service on the part of the appellants. The appellant have supplied a defective car, having manufacturing defect which has further caused unnecessary harassment, tension and loss due to non-use of the vehicle. A legal notice was sent which was received by the appellants, but nothing was done. The respondent is hiring a taxi and is spending Rs.15,000/- per month.
6. It was prayed that the appellants be directed to replace the defective car with a new one or to pay a sum of Rs.10.00 lacs as compensation to respondent no.1 on account of deficiency in service, mental tension and harassment, along with interest @ 12% p.a. as well as Rs.20,000/- as costs.
7. In the written statement filed on behalf of the appellants, preliminary objections were taken that the complaint is false and frivolous. The vehicle in question was sold on 11.02.2009 and respondent no.1 approached appellant no.1 for first free service on 17.04.2009 after covering a First Appeal No.1331 of 2010 4 distance of 3000 kmts. and no defect was reported. Thereafter, respondent no.1 came to the appellants on 30.06.2009 after covering a distance of 7014 kmts. for running repairs and no defect in the vehicle was reported and the delivery was taken after issuing a satisfactory note, as is clear from the job card dated 30.06.2009.
8. Respondent no.1 took the delivery on 14.10.2009 after accidental repairs and he submitted his insurance claim with the insurance company and a bill in the sum of Rs.9488/- was prepared due to the accidental repairs and the same has not been paid till date by respondent no.1 or by the insurance company. On 30.12.2009, respondent no.1 again brought the vehicle to the workshop of appellants and appellants demanded the balance amount against the accidental repairs of the vehicle done on 14.10.2009 and the same is clear from the letters dated 23.01.2010 and 02.02.2010. Respondent no.1 has not come to the Forum with clean hands, as he has not mentioned regarding the accident and once it was a case of accident, the vehicle could not be repaired under warranty. Respondent no.1 has no cause of action. On 30.12.2009, the appellants approached Tata Motors for the repair of the vehicle under warranty, but Tata Motors flatly refused to do the work under warranty, as the vehicle was accidental, as is clear from the job card dated 30.12.2009.
9. Respondent ono.1 is neither paying the repair charges, nor lifting his vehicle from the premises of the appellants and appellant no.1 is entitled for the parking charges @ Rs.500/- per day as the vehicle of respondent no.1 is blocking the working space of the appellants. Appellants also made several requests in this regard to respondent no.1, but all in vain.
10. The defects reported in the complaint were duly repaired to the satisfaction of respondent no.1 and the vehicle was delivered back to him after every repair, to his entire satisfaction and respondent no.1 is not entitled to any relief. There is no expert opinion with respondent no.1 to show that the vehicle in question has inherent defect. After the purchase of the vehicle in First Appeal No.1331 of 2010 5 February, 2009, it is has been used for the last 1 year and 2 months by respondent no.1 and it depends upon the way of using the vehicle by him and the alleged defects might have occurred because of external damage of the vehicle, rough use on rough road, not using the same with prescribed air- pressure in the tyres. The vehicle has been used in a negligent manner and it was not used as per warranty terms and conditions and said problems occurred due to irregular service of the vehicle and the defects pointed out are not the manufacturing defects. There is no consumer dispute and respondent no.1 is not a consumer and no case is made out against the appellants. Respondent no.1 is estopped by his own act and conduct to file the present complaint. The vehicle has not been maintained as per the recommendations given in the Operators Service & Manual Book.
11. The vehicle sold to respondent no.1 is of highest quality and he took delivery of the vehicle after pre-delivery inspection and to his entire satisfaction and the vehicle complies with the warranties and specifications provided by the manufacturer regarding its quality and performance. There is no deficiency in service on the part of the appellants. The relationship between the appellants is on principal to principal basis and the appellants cannot be held liable for any independent act and omission committed by other party.
12. On merits, similar pleas as raised in the preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
13. Respondent no.2 did not contest the complaint before the District Forum and was proceeded against exparte vide order dated 13.04.2010 of the District Forum.
14. In the reply filed on behalf of respondent no.3-Insuerance Company, preliminary objections were raised that there is no deficiency in service on its part. As per terms and conditions of the insurance policy, the answering respondent is liable to pay only if the vehicle is damaged due to First Appeal No.1331 of 2010 6 any accident. In para-6 of the complaint, it has been specifically alleged by respondent no.1 that the vehicle has never met with an accident and the vehicle was having manufacturing defect and the said defect was prevailing in the vehicle from the date of its purchase. The answering respondent is not liable to pay insurance claim for any manufacturing defect. Since it was a case of manufacturing defect, no claim was thus lodged with the answering respondent and the complaint is not maintainable. No cause of action arose in favour of respondent no.1 to file the complaint against the answering respondent. It was admitted that the vehicle in question was insured with the answering respondent, but the answering respondent never gave any assurance that the respondent no.1 will get the claim of insurance if any manufacturing defect will occur in the vehicle and the answering respondent is not liable to pay anything to respondent no.1. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
15. Parties led evidence in support of their respective contentions by way of affidavits and documents.
16. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that appellants alleged that on 14.10.2009 when the car was brought to them, it was an accidental car, but no evidence to prove this plea has been led by the appellants. On the job card and invoice dated 14.10.2009 Ex.C-4, there is no note regarding the accident and even on job card Ex.C- 8/Ex.R-5, there is no specific note that dent beneath the engine oil sump of the car was due to some accident suffered by the car. Engine from below is protected by a 'protection guard' or metal cover, but that protection guard has not been produced by the appellants to show that there was a dent on the engine oil sump. Only in the inspection report of V. K. Chaudhry, Work Manager of appellant no.1 dated 27.05.2010 Ex.R-8 it was mentioned for the first time that when the car was brought to appellant no.1, the protection guard (plate) was not received along with the car. Thus, it is a cooked up First Appeal No.1331 of 2010 7 story. Consequently, the trouble if any in starting of the engine is due to dent in engine oil sump and the same is clearly a manufacturing defect. Sh. Jatinder Singh Yadav, Automobile Engineer was appointed as Local Commission by the Forum vide order dated 03.05.2010, who submitted his report, stating that the engine seizer complaint in the vehicle is not because of the slight dent mark observed on the engine oil sump, it may be due to other defect in the vehicle which causes the engine seizer. There is manufacturing defect in the engine of the car as per own admission of the appellants and they are liable to replace the engine of the car with a new one as per terms and conditions of the warranty because the car was brought to the workshop of appellant no.1 on 30.12.2009 within the warranty period and is still lying there and the respondent no.1 is consumer within the meaning of section 2(1)
(d) of the Act. The complaint against respondent no.3 was dismissed and was allowed against the appellants and respondent no.2 and they were directed to replace the engine of the car with a new engine of the same specification and power within one month from the receipt of copy of the order and to deliver possession of the car to respondent no.1 in perfect working condition, failing which they shall be liable to pay to respondent no.1 market price of the engine as on the date of payment, with interest @ 9% p.a. w.e.f. 10.02.2009 till date of actual payment. Rs.25,000/- were awarded as compensation and Rs.5000/- as litigation costs.
17. Aggrieved by the impugned order dated 01.07.2010, the appellants have come up in the present appeal.
18. Respondent No.2-Fiat India Automobiles Limited has also filed the appeal i.e. F.A. No.1404 of 2010 (Fiat India Automobiles Limited Vs Jodh Singh & Ors.), with a prayer to set aside the impugned order.
19. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties as well as perused the written arguments filed on behalf of respondent no.1.
First Appeal No.1331 of 2010 8
20. Respondent no.1 purchased Fiat Linea Diesel car from Hind Motors India Limited, Mohali on 10.02.2009 and the same was insured with respondent no.3 Insurance Company for the period 11.02.2009 to 10.02.2010.
21. The version of respondent no.1 is that from the very beginning, the car in question was having some problem and it was brought to the workshop of appellants time and again. Respondent no.1 has placed on record the job cards Ex.C-4, Ex.C-6, Ex.C-7 and Ex.C-8. Through these job cards, repairs were done to rectify the defects. Ex.C-8 is the job card dated 30th December, 2009 and the complaint was 'cold starting problem', and under the head Repair Details, "Engine Dismantle and Assemble" is mentioned. On the job card dated 30.12.2009, certain remarks have been written in Hindi which are dated 12.01.2010 wherein it was mentioned "engine oil sump was found damaged (big dent)", and the repair cannot be done under warranty". As mentioned above, the job card is dated 30.12.2009, but for 12 days, no such remark was given and on 12th January, 2010, the version of 'big dent' of the appellants came out. The District Forum appointed Sh. Jatinder Singh Yadav, Automobile Engineer as Local Commissioner vide its order dated 03.05.2010 and the said Local Commissioner after inspection of the vehicle in question filed his report Ex.C-12 supported by his affidavit Ex.CW2/1. The report Ex.C-12 is very relevant and is required to be reproduced and is reproduced as under:-
". That the slight dent mark observed on the right side of engine oil sump of the car.
. That the dealer not provide the engine protection guard for inspection fitted on the vehicle for protection of engine against the obstacles.
. That the engine oil pump strainer fitted inside the oil sump is not damaged by the slight dent on the oil sump.First Appeal No.1331 of 2010 9
. That the dent mark on the right side of the oil sump while the oil pump strainer on the left side of oil sump.
. That the clearance between the oil sump bottom surface and the oil pump strainer is 20 mm (approx) which is more than sufficient for oil circulation.
. That no any engine oil leakage observed on the oil sump. On the basis of above observation engine seizer complaint in the vehicle is not because of the slight dent mark observed on the engine oil sump it may other defect in the above vehicle which causes the engine seizer".
22. Sh. V.K. Chaudhry, Work Manager, Hind Motors India Ltd., Mohali also inspected the vehicle and gave his report Ex.OP-1/8 and described the damage due to accident or external impact. In the job card dated 30th December, 2009, there was no mention that the vehicle was received without the plate, but in the report dated 27.05.2010, this fact was first time revealed by the said work manager.
23. Sh. Jatinder Singh Yadav, Automobile Engineer was appointed by the District Forum and he was an independent person and gave his report Ex.C-12, making it clear that there is slight dent mark on the right side of the engine oil sump of the car. He further made clear that the dealer has not provided the 'engine protection guard' for inspection. There was no leakage and he concluded that engine seizer complaint in the vehicle is not because of the slight dent mark observed on the engine oil sump and it may be due to other defects in the vehicle which caused the engine seizure.
24. Thus, from the above expert report, it is clear that there was no dent caused by any accident, nor it was so significant that it could affect the lubrication system of the engine and caused seizure of the engine. The job cards relied upon by both the parties reveal that there was poor pick up and then there was cold starting problem on 30.12.2009 and in that job card, the workshop was instructed to dismantle and assemble the engine and on that First Appeal No.1331 of 2010 10 day even the damage due to dent to the oil sump was not noticed, but later on the writing in Hindi was made that the dent is due to the accident, but that is not believable and the story put forward by the appellant that the dent was caused by accident and is not covered under the warranty is not believable and is not based on any concrete and cogent evidence.
25. As per the settled law laid down by the Hon'ble Supreme Court in "Maruti Udyog Limited Vs Susheel Kumar Gabgotra & Anr.", I (2006) CPJ-3(SC), only the defective parts can be replaced with new parts. The Hon'ble Supreme Court held in Para-8 as follows:-
"8. The obligation under Clause (3) of the Manual reads as under:
"(3) Maruti's Warranty Obligation: If any defect(s) should be found in a Maruti Vehicle within the term stipulated above, Maruti's only obligation is to repair or replace at its sole discretion any part shown to be defective with a new part of the equivalent at no cost to the owner for parts or labour, when Maruti acknowledges that such a defect is attributable to faculty material or workmanship at the time of manufacture. The owner is responsible for any repair or replacement which are not covered by this warranty."
26. The Hon'ble National Commission also in case reported as "Hyundai Motor India Ltd. Vs Er. Gopal K. Sahi & Anr.", III(2009) CPJ- 131(NC), held that the manufacturer need not replace the car, but only defective parts are required to be replaced.
27. In the present case, the engine is the defective part and the District Forum has directed the appellants and respondent no.2 to replace the engine of the car with a new engine as per terms and conditions of the warranty, because on 301.2.2009 the car was within warranty period. The District Forum has passed a detailed and speaking order and there is no ground to interfere with the same.
28. In view of above discussion, the appeal filed by the appellant is dismissed and the impugned order under appeal dated 01.07.2010 passed by the District Forum is affirmed and upheld. No order as to costs. First Appeal No.1331 of 2010 11
29. The appellant had deposited an amount of Rs.15,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant. F.A. No.1404 of 2010:-
30. In view of the reasons and discussions held in First Appeal No.1331 of 2010 (M/s Hind Motors (India) Limited & Anr. Vs Jodh Singh & Ors.), the First Appeal No.1404 of 2010 (Fiat India Automobiles Limited Vs Jodh Singh & Ors.) is dismissed and the impugned order under appeal dated 01.07.2010 passed by the District Forum is affirmed and upheld. No order as to costs.
31. The appellant had deposited an amount of Rs.15,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
32. The arguments in both the appeals were heard on 14.09.2012 and the orders were reserved. Now the orders be communicated to the parties.
33. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases.
34. Copy of this order be placed in First Appeal No.1404 of 2010 (Fiat India Automobiles Limited Vs Jodh Singh & Ors.).
(Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member September 26, 2012.
(Gurmeet S)