State Consumer Disputes Redressal Commission
Vivek Kundu vs M/S Ford India Pvt.Ltd. on 11 May, 2020
1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint No. : 351 of 2018
Date of Institution : 13.09.2018
Date of Decision : 11.05.2020
Vivek Kundu s/o Sh. Ishwar Singh r/o H.No. 1060, Top Floor, Sector 38-B,
Chandigarh.
....Complainant
Versus
1. M/S Ford India Pvt. Ltd. through its Managing Director, having its registered
Office at S.P. Koil Post, Chengalpattu, Kancheepuram Tamil Nadu-603204.
2. M/S Ford India Pvt. Ltd. through its Manager, Building 10-C, 3rd Floor, DLF
cyber City, DLF Phase 11, Gurgaon - 122002.
3. M/S Sidhant Motors Pvt. Ltd. (Tara Ford) through its Director Pardeep
Nehra, having its Registered Office at 10th K.M. Stone, NH-9, Delhi-Hisar
Bye-Pass, Hisar (Haryana)-125006
4. Pardeep Nehra, Director of M/S Sidhant Motors Pvt. Ltd. (Tara Ford), 10th
K.M. Stone, NH-9, Delhi-Hisar Bye-Pass, Hisar (Haryana)-125006.
5. M/S A. B. Motors Pvt. Ltd (Bhagat Ford) through its Director Amarinder Kaur,
# 53, Industrial Area, Phase Il, Chandigarh.
6. M/S Saluja Motors Pvt. Ltd. (Saluja Ford) through its Director Harbhajan
Singh Saluja, # 140 Industrial Area, Phase Il, Chandigarh.
...Opposite Parties
Complaint under Section 17 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.
MRS. PADMA PANDEY, MEMBER.
MR. RAJESH K. ARYA, MEMBER.
Argued by:
Sh. Ramesh Kumar Bamal, Advocate for the complainant. Sh. Vikas Gupta, Advocate for opposite parties No.1 & 2. Opposite Parties No.3 & 4 exparte vide order dated 25.11.2019. Sh. Harjot Singh Bedi, Advocate for Opposite Party No.5. Sh. Ankur Bali, Advocate for Opposite Party No.6. PER RAJESH K. ARYA, MEMBER The facts in brief are that the complainant, who is a Director (Engineering) with M/S ipDialog India Pvt. Ltd., ventured to buy a brand new Endeavour Trend 2.2.L 4 x 4 MT (for short 'the said vehicle') for his personal use and for this purpose, he approached opposite party No. 3, being the authorized dealer/agent of opposite parties No.1 & 2. He paid Rs.50,000/- as booking amount on 22.12.2016 from his account with Axis Bank at Chandigarh. The complainant 2 ultimately purchased the said vehicle vide Invoice No.SMPL/2016-17/256 dated 05.01.2017 (Annexure C-1) from opposite party No.3 at cost of Rs.22,10,489/-. He also took loan of Rs.12,50,000/- from the Axis Bank at Chandigarh with an EMI of Rs. 26,100/- per month starting w.e.f. 10th Jan, 2017 and ending on 10th Dec, 2021.
He paid a total sum of Rs. 22,83,560/- as per receipts issued by opposite party No.3 (Annexure C-2 colly.). It was further stated that the model/year and month of manufacture of the said vehicle was represented as December 2016 in the Sale Certificate (Form 21) dated 05.01.2017 issued by opposite party No. 3 (Annexure C-3). The complainant got the said vehicle registered with Registering and Licensing Authority at Chandigarh bearing Registration No.CH-01-BK-0073 vide Registration Certificate (Annexure C-4) by paying huge amount of Rs.1,36,601/- as per Receipt dated 17.01.2017 (Annexure C-5).
2. It was stated that within one month of the purchase the said vehicle, the Dashboard rattling noise and excessive vibrations started coming out of it.
3. On 11.02.2017, the said vehicle broke down on a traffic light and refused to start and finally started after 2 minutes, again on 12.02.2017, it broke down in middle of the road on Patiala and Landran highway and did not start, causing long traffic jam on the road for more than half an hour. The complainant called Ford customer care and was asked to take it to opposite party No.5 at Chandigarh. Finally, it started again after half an hour. At that time, the vehicle had just run 1,800 KMs. On 13.02.2017, the vehicle was taken to opposite party No.5 and on inspection, an issue with Crankshaft Position (CKP) sensor in engine (SR No. 0800141154, Bhagat Ford ROABG069460A and ROABG075030A dated 13/02/2017 and 14/03/2017 of vehicle history document) was diagnosed. Opposite party No.5 informed that the said part was unavailable and it would be replaced within a week. However, the said part was replaced on 14.03.2017.
4. Thereafter, again the said vehicle started giving trouble with its wipers during rainy season of Monsoon in 2017, for which, the complainant was again constrained to visit the local service station of opposite party No.6 multiple times, which issue was resolved to some extent but still wipers have been giving loud shuddering noise.
5. It was further stated that around half an inch of the paint layer of front bumper has chipped off during washing at the premises of opposite party No.5 on 3 05.05.2018, when it did some paint touching and asked to visit again to get it repainted.
6. It was further stated that recently all tyres of the vehicle developed cracks as visible vide photographs (Annexure C-6), when the vehicle had just run about 20,000 KMs. The complainant brought these issues to the notice of the opposite parties but to no avail.
7. It was further stated that on enquiry, the complainant was shocked to know that said vehicle was manufactured in April 2016 instead of December 2016 as represented by opposite party No.3 at the time of its purchase in Form 21 and as also mentioned in the registration certificate. It was further stated that in this way, opposite parties No.1 to 4 have indulged into sheer unfair trade practices by selling off an old vehicle as a brand new vehicle by concealing this material fact from the complainant. It was further stated that the opposite parties have deliberately misrepresented and concealed from the complainant the exact month of its manufacture with the mala-fide intention of cheating him.
8. Alleging deficiency in rendering service and unfair trade practice on the part of the opposite parties, the present complaint has been filed by the complainant seeking directions to the opposite parties to replace the said older and defective vehicle with a brand new vehicle with all other expenditures/charges incurred or in the alternative, to refund the total said amounts spent by the Complainant including the cost of purchase, insurance, registration, loss of EMIs due to non-usage etc; pay Rs.5 Lacs towards harassment and mental agony and Rs.1 Lakh as litigation expenses.
9. Opposite parties No.1 and 2, in their reply, took the following preliminary objections:-
(i) The complainant is not a consumer as defined under the provisions of Section 2(1)(d) of Consumer Protection Act, 1986 (in short 'the Act').
(ii) The complaint is liable to be dismissed as the complainant has miserably failed to establish any manufacturing defect in the vehicle by leading any expert evidence.
(iii) The complaint is not maintainable as the warranty obligation of the manufacturer is only to the extent of repair or replacement of the part found defective, as held by Hon'ble Supreme Court 4 of India in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and Anr., AIR 2006 SC 1586.
(iv) As there is no privity of contract between the complainant and opposite parties No.1 & 2, as there is principal-to-principal relation between opposite parties No.1 & 2 and the dealers selling the cars to the end dealers and as such, the complaint is liable to be dismissed.
(v) The complaint involves several dispute questions of facts and law, which would require detailed oral and documentary evidence, therefore, the complaint cannot be adjudicated in summary proceedings and only the civil court has the jurisdiction to decide the complaint.
(vi) The complainant has alleged fraud, therefore, this Commission cannot adjudicate the complaint. To say so, opposite parties No.1 & 2 cited N. Shivaji Rao Vs. Daman Motor Company and Ors, I (1993) CPJ 88 (NC) and Jayantilal Keshavlal Chauhan Vs. The National Insurance Co. Ltd., 1994 (I) CPR 396.
(vii) This Commission has no territorial jurisdiction to entertain and decide the complaint as no cause of action had arisen under the territorial limits of this Commission at Chandigarh.
(viii) Opposite party No.2, which is a Corporate Office of Ford India Pvt. Ltd. and opposite party No.1, manufacturer, are neither necessary nor proper parties and as such, the complaint is liable to be dismissed against them.
10. However, on merits, while denying the averments made in the complaint, opposite parties No.1 & 2 have stated that car sold was a 2016 model car and was a brand new one. It was further stated that the complainant took delivery of the said car in good condition after being fully satisfied without any protest or demur. It was further stated that the complainant duly signed and received various documents such as Form 20 and 21, Insurance Certificate/Cover Note, Vehicle handover/pre-delivery inspection form, delivery challan etc. including Temporary Registration Certificate. It was further stated that as per information received from the authorised dealer, the car was reported at the workstation of authorised dealer i.e. Opposite Party No. 5 on 13.02.2017, where it was thoroughly 5 inspected and was found to be in complete roadworthy condition, however, it was decided to replace the 'Crankshaft Position Sensor', however, the Crankshaft Position Sensor, not being a fast moving part, was not readily available and was accordingly ordered by the authorised dealer. It was further stated that the part was, accordingly, replaced under warranty at zero cost on 14.03.2017. It was further stated that post repairs, the car was subjected to joint road test and was delivered to the complainant in complete roadworthy condition. It was further stated that however, in order to maximize the customer satisfaction and experience, as a good-will gesture, the authorised dealer on instruction of opposite parties No.1 & 2 paid a sum of Rs. 12,000/- towards taxi fare/support to the complainant @800/- per day for fifteen days, despite the fact that the car was being driven as usual by the complainant between 13.02.2017 to 14.03.2017. It was further stated that the car was reported at the workstation of Opposite Party No. 5 on 09.01.2018, after being involved in a road accident with a request to restore roadworthiness, dealer carried out bodywork i.e., denting and painting, and miscellaneous repairs and after restoring the roadworthiness, the car was handed over to the complainant in completely roadworthy condition. It was further stated that thereafter on 29.01.2018, the car again reported with the concern of alleged noise from the dashboard on rough roads. It was further stated that the dashboard was thoroughly checked and no noise as alleged by the complainant was found, the front left hand and right hand side air vent, etc were checked and were found to be normal. It was further stated that the issue as regards 'yellow light glowing in the cluster meter' was resolved by changing the gearshift cables and driveshaft under warranty and at zero cost to the complainant. It was further stated that that bare perusal of the car's VRH revealed that the complainant always received swift support and immediate attention whereas the repair work was promptly attended by the respective authorised dealer every time the car was reported either for regular service or running repairs including those of accidental repairs. It was further stated that the concerns raised by the complainant during various inspections were never performance or safety related. It was further stated that 'Total Maintenance Plan' was offered to the complainant solely to enhance the customer satisfaction and as a good will gesture though there existed no reason for the complainant to disbelieve the assurances given by the manufacturer of the car qua the quality of its product. As regards the allegation of the power tail gate/ lift gate is concerned, 6 it was stated that the same was resolved by the authorised dealer by making minor adjustments.
11. Opposite Party No.5, in its written statement, took a preliminary objection that this Commission has no territorial jurisdiction to entertain and try the complaint. It was further stated that opposite party No.5 has been made party to cull out territorial jurisdiction.
12. However, on merits, it was stated that the vehicle was brought to the workshop of answering OP No.5 on 13.02.2017, immediately upon checking, it was found that crank shaft position sensor required to be replaced. It was further stated that as the part was not available, the same was procured from manufacturer i.e. Ford India Pvt. Ltd. based at Chennai and on receiving the said part, the same was replaced on 14.03.2017 under warranty and the vehicle was handed over to the complainant on 14.03.2017 itself. It was further stated that neither locks of the dashboard were broken nor the dashboard of the vehicle was even touched. It was further stated that the complainant rather raised concern of some problem in the transmission online with Ford India on 19.01.2018 and certain parts were sent to be replaced and when the same were received the complainant was called to bring his vehicle and on 29.01.2018, the coil assembly was replaced under warranty and the vehicle was made totally defect free. It was further stated that the vehicle of the complainant met with an accident and he took an insurance claim in which he got certain parts repainted when those were got damaged in the accident. It was further stated that when the complainant brought his vehicle for second service, he raised an unnecessary issue claiming that the paint which was done of the accidental repair had chipped of, whereas there was no such issue at all and the paint was absolutely fine. It was further stated that taking into consideration the customer oriented approach, opposite party No.5 gave refinishing on the paint which was already done. It was further stated that as and when the vehicle was brought to the workshop of opposite party No.5, the concerns raised were duly taken care of and the necessary repairs were made by replacing the defective parts under warranty and no deficiency in service or unfair trade practice has been alleged against opposite party No.5.
13. Opposite Party No.6, in its reply, has stated that the complainant has brought vehicle in question to its workshop only twice i.e. firstly on 16.09.2017 and secondly on 04.01.2018 and had never complained about the wipers. It was further 7 stated that at the first visit, the vehicle had been brought for 2 nd free service when it had run 10202 Kilometers and thereafter, on 04.01.2018, for vibration from dashboard. It was further stated that on both the occasions, the vehicle was repaired to the utter satisfaction of the complainant and he also signed satisfaction vouchers on both the said occasions. It was further stated that the issue of the noise from dashboard had been resolved and only thereafter, the vehicle had been road tested by the complainant and taken the delivery of the vehicle as well as had signed the satisfaction note in favour of opposite party No.6. It was further stated that there is no inherent manufacturing defect in the vehicle in question and further, no deficiency of service or unfair trade practice can be attributed upon opposite party No.6.
14. The complainant filed rejoinder, wherein he reiterated all the averments made in the complaint and repudiated those as mentioned in the replies filed by the opposite parties.
15. The parties led evidence in support of their respective cases.
16. We have heard the Counsel for the parties and have also carefully gone through the record and written submissions of the parties.
17. Before dwelling on the merits of the case, we would first like to decide the preliminary objections raised by the opposite parties.
18. As regards the first objection that the complainant is not a consumer as defined under the provisions of Section 2(1)(d) the Act, it may be stated here that no doubt, the explanation excludes certain purposes from the purview of expression "commercial purpose" but a person who buys a car for his personal use is certainly a consumer. In the instant case, the complainant purchased the car, in question, from opposite party No.3 - M/s Sidhant Motors Pvt. Ltd., in his personal capacity for his personal use by paying a hefty amount of Rs.22,10,489/- . As the car, in question, was purchased by the complainant for his personal use, he falls within the definition of consumer in view of law laid down by Hon'ble National Consumer Disputes Redressal Commission, New Delhi in CROMPTON GREAVES LIMITED & ANR. Vs DAIMLER CHRYSLER INDIA PRIVTE LIMITED & ORS., Consumer Case No.51 Of 2006 decided on 08.07.2016 wherein it was held as under:-
" The learned counsel for the opposite party also relied upon the decision of this Commission in Interfreight Services Pvt. Ltd. Vs. Usha 8 International 1(1995) CPJ 128 (NC), where this Commission inter-alia observed that the special remedy before the consumer forums can be invoked only by ordinary consumers, purchasing goods for their private and personal use and consumption and not by business organization buying goods for commercial purposes. There is no quarrel with the legal proposition that the provisions of the Consumer Protection Act are not for the benefit of business organizations buying goods for commercial purposes, but at the same time, such organisations are not ousted from the purview of the said Act, where the goods bought or the services hired or availed by them are not for commercial purposes.
11. For the reasons stated hereinabove, the issue referred to the larger Bench is answered as follows:-
(a) If a car or any other goods are obtained or any services are hired or availed by a company for the use/personal use of its directors or employees, such a transaction does not amount to purchase of goods or hiring or availing of services for a commercial purpose, irrespective of whether the goods or services are used solely for the personal purposes of the directors or employees of the company or they are used primarily for the use of the directors or employees of the company and incidentally for the purposes of the company.
(b) The purchase of a car or any other goods or hiring or availing of services by a company for the purposes of the company amount to purchase for a commercial purpose, even if such a car or other goods or such services are incidentally used by the directors or employees of the company for their personal purposes"
In view of above, the objection raised by opposite parties No.1 & 2 being not sustainable in the eyes of law stands rejected.
19. The objections that the complaint is liable to be dismissed as the complainant has miserably failed to establish any manufacturing defect in the vehicle by leading any expert evidence and further as the warranty obligation of the manufacturer is only to the extent of repair or replacement of the part found defective, as held by Hon'ble Supreme Court of India in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and Anr., AIR 2006 SC 1586, in our considered opinion, relate to the merits of the case and as such, shall be decided while adjudicating the complaint on merits.
20. As regard the objection that as there is no privity of contract between the complainant and opposite parties No.1 & 2, as there is principal-to-principal relation between opposite parties No.1 & 2 and the dealers selling the cars to the end users and as such, the complaint is liable to be dismissed, it may be stated here that since opposite parties No.1 & 2 are the manufacturers of the vehicle, in question, they are also equally liable for any deficiency, in rendering service or unfair trade practice on the part of their dealers. In the instant case, the complainant has specifically alleged deficiency in rendering service and unfair 9 trade practice on the part of opposite parties No.3 to 6. For any omission or commission on their part, opposite parties No.1 & 2, being the manufacturers of the vehicle, in question, cannot absolve their liability. As such, the objection raised stands rejected.
21. The next objection raised is that the complaint involves several disputed questions of facts and law, which would require detailed oral and documentary evidence, therefore, the complaint cannot be adjudicated in summary proceedings and only the civil court has the jurisdiction to decide the complaint. It may be stated here that it is a simple case where the complainant has alleged non-rectification of defects in the vehicle to his entire satisfaction and further selling him a vehicle, allegedly manufactured in April 2016 instead of December 2016. Even otherwise, the Hon'ble Supreme Court of India in case Punj Lloyd Ltd. vs Corporate Risks India Pvt. Ltd, Civil Appeal No.1026 of 2007 decided on 11.12.2008, held in Para 12 as under:-
"12. In our view, as already observed, the Commission was not justified in relegating the complainant/appellant to approach the civil court for decision only on the ground that the complaint disclosed disputed questions and contentions which is not required to be dealt with under the Act. For this purpose, we have looked into the statements made in the complaint in detail and in depth. From a look at the statements made in the complaint, it would be difficult to say that the complaint has disclosed complicated questions of fact which cannot be gone into by the Commission and the same can only be gone into by the Civil Court before bringing the respondent on record and asking him to file his defence. The decisions, relied on by Mr. Ranjit Kumar and noted namely, Synco Industries' case (supra) and the decision in Dr. J.J. Merchant's case (Supra) were duly considered by Two-Judge Bench of this Court in CCI Chambers case (supra) in detail and after considering the aforesaid two Three- Judge Bench decisions of this Court, as mentioned herein above, and after explaining the same, Lahoti, CJ, (as His Lordship then was), held that the nature of averments made in the complaint was not by itself enough to arrive at a conclusion that the complaint raised such complicated questions as could only be determined by the Commission. While coming to this conclusion, Lahoti CJ, (as his Lordship then was), in paragraph 6 of the aforesaid case in page no. 236 observed as follows:
"It cannot be denied that fora at the national level, the State level and at the district level have been constituted under the Act with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the fora established under the Act. These fora have been established and conferred with the jurisdiction in addition to the conventional courts. The principal object sought to be achieved by establishing such fora is to relieve the conventional courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the technicalities. Merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and 10 determined, cannot be a ground for shutting the doors of any forum under the Act to the person aggrieved."(Emphasis supplied)
13. Again in paragraph 7 of the aforesaid decision, it was observed:
"A three-Judge Bench of this Court recently in Dr. JJ. Merchant Case, (2002) 6 SCC 635, specifically dealt with the issue as to the guidelines which would determine the matter being appropriately dealt with by a forum under the Act or being left to be heard or decided by a Civil Court. .....The decisive test is not the complicated nature of questions of fact and law arising for decision. The anvil on which entertainability of a complaint by a forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by summary enquiry i.e by doing away with the need of a detailed and complicated method of recording evidence. It has to be remembered that the fora under the Act at every level are headed by experienced persons. The National Commission is headed by a person who is or has been a Judge of the Supreme Court. The State Commission is headed by a person who is or has been a Judge of a High Court. Each District Forum is headed by a person who is, or has been, or is qualified to be a District Judge. We do not think that mere complication either of facts or of law can be a ground for the denial of hearing by a forum under the Act."(Emphasis supplied).
14. In Dr. JJ Merchant's case (supra), this Court, dealing with the contention that complicated questions of fact cannot be decided in summary proceedings, also held as under :-
"It was next contended that such complicated questions of fact cannot be decided in summary proceedings. In our view, this submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that the Commission or Forum is required to have summary trial, would hardly be a ground for directing the consumer to approach the civil court. For the trial to be just and reasonable, long- drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that the legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would be a totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act provided sufficient safeguards."(Emphasis supplied).
15. Following the aforesaid observations of this Court as quoted herein-above, in the aforesaid decision of CCI Chamber's case (supra) and also the observations in Dr. JJ Merhant's Case (supra) which have been noted herein- above, we are of the view that the decision arrived at by the Commission is premature. The Commission ought to have issued notice to the respondent and placed the pleadings on record. When pleadings of both the parties were made available before the Commission, only then the Commission should have formed an opinion as to the nature and scope of enquiry, i.e., whether the facts which arose for decision on the basis of the pleadings of the parties required a detailed and complicated investigation of facts which was incapable of being undertaken in a summary and speedy manner, then only the Commission should have justifiably formed an opinion on the need of relegating the complaint to a civil court. That apart, in view of the admitted fact that the respondent was never served with any notice and not present before the Commission, therefore, it was 11 not known to the Commission, what would be the defence and contentions of the respondent and what questions and disputes would really arise therefrom until and unless both sides place their respective cases before the Commission. At that stage, it is difficult for the Commission also to hold whether the disputed questions and contentions could not be decided by the Commission and the same must be relegated to the Civil Court. Every complaint of the consumer is related to a dispute and will raise disputed questions and contentions. If there was no dispute, then there would be no complaint. Therefore, the ground for rejection of the complaint namely, "it arises disputed questions and contentions" was definitely irrelevant. Therefore, the Commission was not justified in rejecting the complaint only on this ground. In any view of the matter, it is not evident from the order of the Commission that it had considered the nature of disputed questions of fact for which the complainant should be relegated to the Civil Court for decision. In view of our discussions made hereinabove and relying on the principles enunciated by this Court in the aforesaid decisions, we are, therefore, of the view that the Commission was not justified in rejecting the complaint merely by stating that the complicated nature of facts and law did not warrant any decision on its part before even issuing notice to the respondent and directing the filing of his defence, which, in our opinion, cannot be said to be decisive."
In view of above, this objection raised by opposite parties No.1 & 2 in this regards stands rejected being devoid of any merit.
22. The next objection raised is that the complainant has alleged fraud, therefore, this Commission cannot adjudicate the complaint. In this regard, it may be stated here that it is a simple case of non-rectification of defects in the vehicle and if the complainant alongwith the allegations of deficiency in service has also said that fraud has been committed with him on account of the said deficiency, that would not shove him out of the purview of consumer. The judgments relied upon by opposite parties No.1 & 2 in cases N. Shivaji Rao (supra) and Jayantilal Keshavlal Chauhan (supra) are of no help being distinguishable on facts.
23. The next objection raised is that this Commission has no territorial jurisdiction to entertain and decide the complaint as no cause of action had arisen under the territorial limits of this Commission at Chandigarh. It was argued that even the legal notice dated 02.08.2018 (Annexure C-11) was addressed to opposite parties No.1 to 3 situated at Tamil Nadu, Gurgaon and Hisar (Haryana). It may be stated here that for making part payment of the vehicle, in question, which the complainant purchased from Hisar, he took a loan of Rs.12,50,000/- from Axis Bank at Chandigarh as is evident from Receipt dated 05.01.2017 (Annexure C-2 colly), at page 23 of the complaint, in the sum of Rs.12,48,560/-, which the contesting opposite parties have not disputed. Not only above, the vehicle, in question, was taken to opposite parties No.5 & 6 situated at Chandigarh for necessary repairs as is admitted in the replies filed by these opposite parties. Since 12 a part of cause of action has accrued at Chandigarh, therefore, this Commission has the territorial jurisdiction to entertain and try the present complaint. The objection raised in this regard is rejected being not sustainable in the eyes of law.
24. The next preliminary objection is that Opposite party No.2, which is a Corporate Office of Ford India Pvt. Ltd. and opposite party No.1, manufacturer, are neither necessary nor proper parties and as such, the complaint is liable to be dismissed against them. In our considered opinion, the objection raised is not tenable as they are the manufacturers of the vehicle purchased by the complainant, qua which, the complainant has raised various allegations qua its manufacturing date and other defects. To the mind of this Commission, opposite parties No.1 & 2 are the necessary parties in this case. The objection raised, thus, stands rejected.
25. On merits of the case, it may be stated here that the prime allegation of the complainant is that the vehicle, in question, which was sold to him as manufactured in December 2016, was in fact manufactured in April 2016. It was further argued that due to this unfair trade practice on the part of opposite parties No.1 to 3, the vehicle was registered as manufactured in December 2016. This averment of the complainant finds corroboration from documents Annexures C-3, C-4 & C-7 placed on record by the complainant. Bare perusal of Annexure C-3, which is Form 21 (Sale Certificate) issued by opposite party No.3 (Sidhant motors Pvt. Ltd.) on 05.01.2017, shows that the year and month of manufacture was mentioned as "2016-DEC", on the basis of which, the vehicle was got registered with the Registering Authority, U.T., Chandigarh as manufactured in December 2016. When it came to the notice of the complainant that the vehicle is not December 2016 make but it is April 2016 make, he raised his grievance with opposite party No.3. It is only then, opposite party No.3 issued another Sale Certificate (Form 21), Annexure C-7, wherein year and month of manufacture of the vehicle sold to the complainant was mentioned as '2016-Apr'. Opposite Party No.3 sent the aforesaid corrected Sale Certificate (Annexure C-7) to the complainant vide email dated 25.02.2018 (Annexure C-8). Relevant portion of the said email reads thus:-
"Please find the attachment of corrected form 21, now we have two options about correct this in vehicle RC......"13
26. Vide aforesaid email dated 25.04.2018, opposite party No.3 also gave two options to the complainant to get correction qua year and month of manufacture in the registration certificate.
27. In view of above, it is established on record and rather admitted vide Sale Certificate (Annexure C-7), that the vehicle sold to the complainant was manufactured in April 2016 and not in December 2016. Issuing Form 21 (Sale Certificate), Annexure C-3, by opposite party No.3 (Sidhant motors Pvt. Ltd.) on 05.01.2017, shows that the year and month of manufacture was mentioned as "2016-DEC" was a glare deficiency in service and unfair trade practice on its part. For this deficiency on the part of opposite party No.3, who is authorised dealer of Ford India Pvt. Ltd, opposite parties No.1 & 2 are equally liable.
28. Now coming to the second aspect of the case qua alleged defects in the vehicle, in question, the onus to prove that there was manufacturing defect was on the complainant. Expert opinion is a condition precedent for establishing manufacturing defect as per the law laid down by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in EID Parry vs. Baby Benjamin- I[1992] CPJ 279, Tata Motors vs. Sunil Bhasin- III [2008] CPJ 111, Chandreshwar vs. Telco- I [2007] CPJ 2, Diamond Cement vs. Rai Prexim India Pvt. Ltd. I [2003] CPJ 1 Lovely vs. Harmesh Lal-I [2007] CPJ 312. However, to prove his case, the complainant has annexed Technical analysis and expert report (Annexure C-14), which he obtained from Swami Automobiles (P) Ltd. as regards alleged defects/issues. The said report is extracted hereunder:-
"Subject: - Technical analysis and expert report for Ford Endeavour Trend
2.2L 4x4 MT TO WHOM IT MAY CONCERN Swami Automobiles is a multi brand car service center located in Chandigarh Industrial Area Phase I having the experience in automobile services of more than 20 years. We have immense experience with all type of passenger cars/SUVs and have in-house mechanical machinery and manpower to investigate complex vehicle issues.
Mr. Vivek Kundu resident of 1060, TF, Sector 38-B, 160036 approached us seeking opinion for the below issues that he is facing with his car Ford Endeavour Trend 2.2L 4x4 MT having VIN no. MAJAXXMRWAGG80163:
1. Car stops when in low speed and doesn't start intermittently, only starts after waiting for 20-30 minutes
2. Dashboard Noise -- Intermittent noise from left side while driving,' instrument panel and inside door handles give cracking sound on touching 14
3. Power Liftgate is misaligned, digs into car body and makes intermittent noises
4. Gear Shifting Hard
5. 5-10 seconds noise from AC fan when car is started with AC on
6. Moisture develops on indicators glass
7. Cracks in tyres
8. Horn doesn't work properly sometimes
9. Front fender LHS paint chipping
10. Paint discoloration and marks
10. Wiper water doesn't come out sometimes
11. Windscreen light reflection during night driving Our experts investigated the vehicle Ford Endeavour Trend 2.2L 4x4 MT (VIN MAJAXXMRWAGG80163) on April 25, 2019 •for above issues as requested by the customer. Please find below dur report:
1. Car stops when in low speed and doesn't start intermittently, only starts after waiting for 20-30 minutes As can be seen in the video dated April 13, 2019 provided by the customer, engine was cranking but not starting and Check Engine warning Light was on. It looks like a hot/warm start problem. Some condition is occuring when engine is hot and that makes it not to start and once it is cooled it starts. We tried twice after running the car for 30 minutes, stopped it. It started ok. Customer has also mentioned that he doesn't see this issue always and has encountered this issue 4-5 times.
But intermittent hot start problems are very hard to diagnose in modern complex engines involving computer controls. We suspect some issue with relay, fuel pump, and engine sensors. The customer is facing this issue since just after 40 days of purchasing this vehicle as he states, we think it may be an inherent manufacturing defect.
2. Dashboard Noise -- Intermittent noise from left side while driving, instrument panel and inside door handles give cracking sound on touching Noise can be heard from left hand side front door and left hand side dashboard area in driving. Some noise was also heard from center dashboard area while driving. Center dashboard, instrument panel and inside door handles give plastic cracking sound even when touched or operated.
3. Power Liftgate is misaligned, digs into car body and makes intermittent noises Tailgate has made dent or marks on the car body beneath it on left side. Tailgate touches car body from left bottom corner while vehicle is running. Noise can also be heard when tailgate is opened or closed. Tailgate misaligned and one of the tailgate shocker has seepage.
4. Gear Shifting Hard First, second and reverse gear are bit hard when operated on idle vehicle. Gears were felt hard while driving too. Some friction/jerks can be felt in gear shifts. In our opinion probably there is a defect in gear shifting mechanism.
5. 5-10 seconds noise from AC fan when car is started with AC on We started the vehicle with AC on thrice after a gap of 3 minutes in each test. On all occasions a noise of fan hitting something was heard only for first few seconds. It looks like something is touching blower fan.
6. Moisture develops on indicators glass 15 After washing of the car, moisture was observed inside the indicator on right hand side rear view mirror. It seems to be that side rear view mirror is not properly sealed and it may be a manufacturing defect.
7. Cracks in tyres Tyres has cracks ranging from half a centimeter to 2-3 centimeters and uneven wear out is observed on all the tyres. Uneven wear is because of defect in suspension system and tyre cracks may be due to manufacturing defects in tyres.
8. Horn doesn't work properly sometimes Horn couplers were checked and those need replacement.
9. Front fender LHS paint chipping Paint chipping is there on LHS fender just about the tyre.
10. Paint discoloration and marks Front RHS fender has marks on the paint. Some discoloration is also there. Rear bumper also has some discoloration.
11. Wiper water doesn't come out sometimes As seen in multiple videos shared by the customer dated July 30, 2018, Aug 16, 2018, Aug 27, 2018, September 17, 2018 and March 31, 2019, it can be heard that wiper water motor is running but still no water is coming out. Also, there was no indication of low wiper fluid level. It looks like some issue with wiper water motor and/or wiper fluid hose.
12. Windscreen light reflection during night driving Some minor scratches were observed on windscrean and that may be the reason of light reflection.
29. However, to settle the controversy at rest and to ascertain the true picture as regards the aforesaid alleged defects/issued raised by the complainant, this Commission vide order dated 26.08.2019, directed the Director of Punjab Engineering College, Chandigarh to constitute a team of two experts to look into the matter and submit a report to this Commission to the effect that whether any manufacturing defect exists in the car, as per order dated 10.06.2019 passed by this Commission. It was also directed that to arrive at conclusion, reference be also made to remarks mentioned in the job cards qua the car, in question, as and when it was taken to the service station. The complainant was also directed to submit all relevant documents to the inspection committee and present the car before the Committee constituted by the Director, Punjab Engineering College, Chandigarh on 13.09.2019 at 10.30 AM. It was also directed that the car be inspected in the presence of the parties/their representative to whom notice of the date is also given.
1630. In compliance to our aforesaid order, Inspection report dated 23.09.2019 of vehicle, in question, was received from the Mechanical Engg. Department, Panjab Engineering College, Chandigarh, which reads thus:-
"Sir, Reference to the letter nos. SC-CP-2019/2107 Dated 11.06.2019, SC-CP-2019/2652 Dated 18.07.2019, SC-CP-2019/3235 Dated 27.08.2019 and our letter no. PEC/MED/849 Dated 12.07.2019, PEC/MED/941 dated 29.07.2019 on the subject cited above. As per the direction of the Hon'ble Commission the vehicle in question was brought before the committee for inspection on 13.09.2019 at 10.30 A.M. in the Mechanical Engineering Department of the Institute by Sh. Vivek Kundu, the complainant. Sh. Sat Pal Kesar of Saluja Ford, Mohali were present during Inspection and test drive. No person from Ford India Pvt. Ltd was present.
The vehicle having registration no. CHOIBK-0073, Engine No. GG80113, Chassis No. MAJAXXMRWAGG80113 (Ford Endeavour 2.2L TREND 4x4 MT) was presented for inspection. The vehicle in question was inspected and test driven for about 34 kms.
All the problems/defects mentioned in the application were checked during inspection and test drive. The following are the observations of the committee as mentioned below:
a. Wiper water was not coming out properly initially.
b. Power liftgate is misaligned, digs into car body and makes intermittent noise.
c. Power liftgate/tailgate was opening and closing
properly.
d. Cracks in tyres.
e. Front fender paint peeling of on left hand side of the vehicle.
f. There were some marks and cracks on the body paint of the vehicle.
g. Horn was working properly.
h. No moisture on right hand side indicator glass.
i. No noise from AC fan when car is started with AC on.
j. Windscreen light reflection during night driving could not be observed.
k. Gear shifting during drive was hard with intermittent jerks.
Dashboard noise was there when it is pressed.
m. Check brake system error and ABS warning light flashing was not noticed during test drive.
n. Suspension system during drive was not working properly. o. There was no problem of car stopping and starting during test drive.
After inspection, test drive and perusal of records the committee is of the opinion that the vehicle has some inherent problems which can be attributed to manufacturing defects as the same could not be rectified even after the vehicle was regularly serviced/checked at the authorized service station of the company."17
31. Opposite parties No.1 & 2 filed objections to the aforesaid inspection report dated 23.09.2019 submitted by Punjab Engineering College alongwith short affidavit of Mirza Qaiser Iqbal Beg working with Ford India Pvt. Ltd.
32. The complainant also filed detailed reply to the objections of opposite parties No.1 & 2.
33. It may be stated here that the inspection report dated 23.09.2019 of Punjab Engineering College, Chandigarh has been submitted by expert committee constituting Dr. Sushant Samir, Professor, Sh. Gopal Dass, W.I and Dr. Ankit Yadav, Assistant Professor, Mechanical Engg. Deptt. On the other hand, while filing objections to this report, opposite parties No.1 & 2 did not place on record any cogent and convincing report of any expert in support of their pleadings. Moreover, Mirza Qaiser Iqbal Beg working with Ford India Pvt. Ltd. in his affidavit, filed in support of objections to the inspection report dated 23.09.2019, did not disclose his designation or expertise in the field. Merely, it has been stated that he is working with opposite parties No.1 & 2 and is fully conversant with the facts of the case and competent to depose. Even, it has not been stated in the affidavit that what is his qualification and how he is qualified enough to justify objection to the expert report of Panjab Engineering College, Chandigarh. Merely filing objections by opposite parties No.1 & 2 does not suffice the purpose or enough not to accept the expert/inspection report dated 23.09.2019.
34. Bare perusal of inspection report dated 23.09.2019 transpires that there was no problem with Power liftgate/tailgate, which was opening and closing properly; horn was also working properly; No moisture on right hand side indicator glass was noticed; there was no noise from AC fan when car was started with AC on; further windscreen light reflection during night driving was not observed. It is also mentioned in the report that brake system error was checked and ABS warning light flashing was not noticed during test drive. Further, there was no problem of car stopping and starting during test drive.
35. However, the expert committee of Punjab Engineering College, Chandigarh noticed the following defects in the vehicle of the complainant:-
i. Wiper water was not coming out properly initially ii. Power liftgate is misaligned, digs into car body and makes intermittent noise.18
iii. Cracks in tyres.
iv. Front fender paint peeling of on left hand side of the vehicle.
v. There were some marks and cracks on the body paint of the vehicle.
vi. Gear shifting during drive was hard with intermittent jerks.
vii. Dashboard noise was there when it is pressed. viii. Suspension system during drive was not working properly.
36. It may be stated here that after inspection, test drive and perusal of records, the expert committee of Punjab Engineering College, Chandigarh opined that the vehicle has some inherent problems, which can be attributed to manufacturing defects as the same could not be rectified even after the vehicle was regularly serviced/checked at the authorized service station of the company. Not only this, similar was the opinion of Swami Automobiles (P) Ltd. vide Annexure C-14 qua the aforesaid defects observed by Punjab Engineering College, Chandigarh.
37. In view of above, we are of the considered opinion, that manufacturing defect is much more than an ordinary defect. Manufacturing defect is fundamental basic defect which creeps while manufacturing a machinery. To prove such a defect, opinion of an Expert is necessary, which, in the instant case, in the shape of expert report of Punjab Engineering College, has proved the case of manufacturing defect in the vehicle purchased by the complainant. Once it has come on record that the aforesaid vehicle has some inherent problems, which can be attributed to manufacturing defects, the life of the complainant cannot be put to risk by using the vehicle in question. The vehicle is still in possession of the complainant. Problems like Power liftgate, Gear shifting, cracks on all tyres and Suspension system are major problems and directly contribute to the functioning of the vehicle. Gear shifting or slipping transmission can be a potentially dangerous situation as the vehicle can be unreliable and start shaking. Similarly, a power liftgate, which plays a very important role, opens and closes automatically when activated by key fob. The said problem also could not be rectified and both Swami Automobiles (P) Ltd. and Punjab Engineering College, Chandigarh noticed major problem in the power liftgate. As regards cracks in tyres, Swami Automobiles (P) Ltd. observed that uneven cracks in tyres ranging from half a centimeter to 2-3 centimeters and uneven wear out is because of defect in suspension system and 19 tyre cracks may be due to manufacturing defects in tyres. In its report, Punjab Engineering College has also observed the cracking of tyres due to inherent problems, which can be attributed to manufacturing defects. Similar was the opinion of both the experts as regards Front fender paint peeling on left hand side of the vehicle; some marks and cracks on the body paint of the vehicle; Gear shifting during drive was hard with intermittent jerks; Dashboard noise was there when it is pressed, which were also due to inherent problems, which can be attributed to manufacturing defects.
38. In our considered opinion and in view of aforesaid position, the claim of the complainant for replacement of the vehicle with new one of same make and model has to been accepted.
39. For the reasons recorded above, we allow the complaint against opposite parties No.1 to 3 with costs. Opposite parties No.1 to 3 are, jointly and severally, directed as under:-
(i) to replace the vehicle of the complainant i.e. Endeavour Trend 2.2.L 4 x 4 MT, with a brand new vehicle of same specifications/ features within a period of 45 days from the date of receipt of certified copies of this order, and in case, the same is not available for delivery to the complainant, then, the cost of vehicle i.e. Rs.22,10,489/- paid by the complainant (as per Invoice dated 05.01.2017, Annexure C-1) be refunded to him within the aforesaid period of 45 days, failing which, the said amount shall carry interest @9% per annum from the date of default i.e. after expiry of 45 days period, till actual realization.
(ii) to pay an amount of Rs.50,000/- as compensation to the complainant for deficiency in service and adopting unfair trade practice by selling old car, within a period of 45 days from the date of receipt of certified copy of this order, failing which, the said amount shall carry interest @9% per annum from the date of filing this complaint till actual realization.
(iii) to pay an amount of Rs.25,000/- as cost of litigation to the complainant within a period of 45 days from the date of receipt of certified copy of this order, failing which, the said amount shall 20 carry interest @9% per annum from the date of filing this complaint till actual realization.
40. However, the complaint against opposite parties No.4 to 6 stands dismissed with no order as to costs.
41. The file be consigned to Record Room, after completion. Pronounced.
11.05.2020.
[RAJ SHEKHAR ATTRI] PRESIDENT (PADMA PANDEY) MEMBER (RAJESH K. ARYA) MEMBER Ad 21 STATE COMMISSION (Complaint No.351 of 2018) Argued by:
Sh. Ramesh Kumar Bamal, Advocate for the complainant. Sh. Vikas Gupta, Advocate for opposite parties No.1 & 2. Opposite Parties No.3 & 4 exparte vide order dated 25.11.2019. Sh. Harjot Singh Bedi, Advocate for Opposite Party No.5. Sh. Ankur Bali, Advocate for Opposite Party No.6.
D ated the 11 t h day of May, 2020.
O RD ER Vide our detailed order of the even date, recorded separately, the complaint has been allowed against opposite parties No.1 to 3 with costs. However, the complaint has been dismissed against opposite parties No.4 to 6 with no order as to costs.
(PADMA PANDEY) (RAJ SHEKHAR ATTRI) (RAJESH K. ARYA)
MEMBER PRESIDENT MEMBER
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