State Consumer Disputes Redressal Commission
M/S Padam Cars Private Limited(Padam ... vs Gursewak Singh And Another on 11 February, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 255 of 2014
Date of institution: 13.3.2014
Date of Decision: 11.2.2016
M/s Padam Cars Private Limited (Padam Motors), No. 279/3, G.T. Road,
Dhandari Khur, Ludhiana, through its Managing Director/Chairman.
Appellant/Op No.1
Versus
1. Gursewak Singh son of Shri Baljit Singh, resident of 1777, Urban
Estate, Phase-1, Dugri, Ludhiana.
Respondent No.1/Complainant
2. M/s Chevrolet Sales India, Gurgaon.
Respondent No.2/Op No. 2
First Appeal against the order dated 28.1.2014
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Bhaskar Sharma, Advocate
For respondent No.1 : Sh. M.S. Bal, Advocate
For respondent No.2 : Sh. Chanderhas Yadav, Advocate
First Appeal No. 255 of 2014 2
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/Op No.1 (hereinafter referred as Op No.1) has filed the present appeal against the order dated 28.1.2014 passed by the District Consumer Disputes Redressal Forum, Ludhiana(hereinafter referred as the District Forum) in consumer complaint No. 401 dated 28.5.2013 vide which the complaint filed by respondent No.1/complainant(hereinafter referred as complainant) was allowed with the direction to Op no. 1 to repair the car of the complainant to his entire satisfaction and deliver the same to the complainant within 15 days from the date of receipt of the copy of the order without charging any parking charges. In case the complainant is not satisfied with the repair qua engine, Op No. 1 was directed to get the vehicle in question checked from an authorised service centre of Op No. 1 in order to ascertain whether engine of the vehicle was overhauled or not and in case it was found that the engine of the vehicle was overhauled then in that eventuality Op No. 1 was directed to replace the complete engine assembly with the new one without any cost within 15 days. Op No. 1 was further directed to pay Rs. 25,000/- as compensation on account of mental pain, agony and harassment and Rs. 2,000/- as litigation expenses.
2. Complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against OPs on the averments that he purchased a diesel car marka Beat PS bearing temporary No. PB-3Y-7557 with chassis No. MA 6BFBENCCTO 21381, Engine No. 10AB52121250167 from Op No. 1 being authorised Dealer of Op No. First Appeal No. 255 of 2014 3 2 on 25.7.2012. However, in the month of February, 2013, complainant observed that there was a weird sound like whistling in the engine. Car was taken to workshop of Op no. 1 for its 3rd free service and fault was pointed out to them. After checking the engine, the concerned mechanic told that certain injector meant for supplying oil to the engine was not functioning well and oil was not properly injected to the engine, which was the reason of leakage in the engine and that it would be removed after the service. The car was returned to the complainant after servicing. On 28.2.2013, complainant alongwith his brother, his wife and 14 months old baby were going from Ludhiana to Faridabad. When they reached near Sun Filling Station, Suraj Kund to the sudden shock and dismay of complainant, the steering of the car jammed at the spot and car halted. However, with the grace of almighty, complainant and his family escaped from any untoward incident. Then complainant called at the helpline of OP No. 2, after three hours some technicians from nearby Authorised Service Centre came and car was towed to M/s Ragent Automobiles Pvt. Ltd., 14/5, Rubi Complex, Main Mathura Road, Faridabad. It was revealed that there was defect of alternator. It was a power steering and failed on account of non-operation of motor giving power to the steering. Complainant hired a taxi for ferrying his family. Car was got repaired and requisite charges were paid by the complainant. After about one month again there was a leakage in the engine and on 3.4.2013, the car was taken to the Workshop of Op No. 1. It was a chronic sort of fault. Op No. 1 asked the complainant to get back his car on 10.4.2013. Complainant gave a long time for repair of the First Appeal No. 255 of 2014 4 brand new car to Ops. They knew about the manufacturing defect in the vehicle but they still wanted to set right the things at the cost of the complainant. On 5.4.2013, complainant suddenly visited the Workshop of Op No. 1 and he was surprised to see the entire engine of the car was downloaded and it was lying opened and some major repairs seemed to be undertaken whereas there was a fault of mere oil leakage followed by sudden jam of the car on the road on 28.2.2013. On enquiry, the official of OP No. 1 stated that they were overhauling the engine, which was absolutely eerie for a new car. Since it was a new car and was having a manufacturing defect, therefore, complainant was not entitled for any repair but replacement or refund of the entire money. Ops initially promised to replace the car with new one but thereafter they started to repair it. The above facts make it very clear that Ops were deficient in their service. Hence, the complaint with the direction to Ops to replace the defective car with new one or in the alternative to refund the entire price money, pay Rs. 1 lac as compensation for suffering harassment, mental torture, pain and agony and Rs. 22,000/- as litigation expenses.
3. Complaint was contested by Ops. Op no. 1 in its reply/version took the preliminary objections that complaint was barred under Section 26 of the Act. Complainant had purchased the car from Op No. 1, manufactured by Op No. 2 on 25.7.2012 and had executed a satisfactory note before purchase. When car had covered 18052 Kms. on 12.3.2013, it was sent by the complainant to Op No. 1 with the complaint car diesel leakage. It was thoroughly checked up First Appeal No. 255 of 2014 5 by Engineer of Op No. 1 and it was found that diesel leakage was from the injectors and the same needed to be opened but the customer refused to get the said work done on account of less time. The car was again received by them in the month of April, 2013 with the same fault. It was again thoroughly checked up by Engineer of Op No. 1, it was found that the diesel leakage was from the injectors and needed to be opened and fresh injectors supplied by Op No. 2 were inserted and refitted as per the instructions of the complainant free of cost. The car was extensively used for 8 months and defect of injectors was duly rectified. In case the defect is rectified, it cannot be termed as a manufacturing defect, therefore, the relief asked for by the complainant for replacement of the car cannot be accepted. The complainant was informed about the said repair and was advised to take the delivery. He came to the premises of Op No. 1 alongwith 25- 30 persons and created a hue and cry and complaint was lodged with P.S. Sahnewal, District Ludhiana with FIR No. 5 dated 23.4.2013 under Section 323/283/342/149 IPC. The car in question after due repairs is still lying with Op No. 1 for delivery but he had not come forward to get the delivery and putting upon the pressure for replacement; the complaint was not maintainable as complicated question of law and facts were involved, which required elaborate evidence oral and documentary, which was not possible under the summary procedure before Consumer Fora, therefore, it be relegated to Civil Court and that the complainant was estopped by his own act and conduct to file this complaint. On merits, purchase of the car by the complainant from Op No. 1, manufactured by Op No. 2 was First Appeal No. 255 of 2014 6 admitted. With regard to the defects, it has been elaborately referred in the preliminary objections above and after rectification, the complainant had not come forward to get the car. What was required on the part of this Op, in case there is defect in the vehicle, it can be rectified. In case no manufacturing defect is there then the car cannot be replaced as claimed by the complainant. There was no deficiency in service on the part of this Op. Complaint was without merit, it be dismissed.
4. Op No. 2 in its written reply took the preliminary objections/submissions that the complaint was not maintainable in the present form. Complainant was a person of criminal background and FIR No. 5 dated 23.4.2013 was registered against him in P.S. Sahnewal, District Ludhiana. According to the warranty terms, Op No. 2 is only bound to repair/rectify the defective parts of the vehicle according to Owner's Manual agreed between the parties and parties were bound by the terms of contract. The vehicle was repaired/rectified the defects as per warranty terms, therefore, the complainant cannot be allowed to get illegal benefits out of it. Op No. 2 used to sell the cars in bulk to local dealers and they had been selling in retail and were providing the services. In the absence of any manufacturing defect, there was no liability of Op No. 2. Op No. 2 was unnecessarily dragged as one of the Op in this complaint. Complaint was liable to be dismissed on the ground that complaint was filed with a malafide intention. No harassment was caused to the complainant as alleged in the complaint. As and when he came to Op no. 1 for service, it was given. For the first time on 14.8.2012 for First Appeal No. 255 of 2014 7 reassurance check up, then on 22.10.2012 for free service when the vehicle had run 8173 Kms., on 18.2.2013 when the vehicle had run 15546 Kms., then on 12.3.2013 for the first time the complainant complained regarding diesel leakage. It was rectified. There was no unfair trade practice or deficiency in service on the part of this Op. On merits, averments stated in the preliminary objections were reiterated. It was reiterated that the complainant was unable to make out any case of manufacturing defect. Whatever defects were pointed out by the complainant were rectified by Op No. 1 dealer of Op No. 2. There was no unfair trade practice or deficiency in service on the part of this Op. Op No. 2 has been wrongly dragged as one of the Op. Complaint was without merit, it be dismissed.
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence affidavit of Gursewak Singh Ex. CA, retail invoice Ex. C-1, receipts Exs. C-2 to C-6, challan No. 1849 dt. 25.7.12 Ex. C-7, Certificate of Registration Ex. C-8 & C-9, insurance cover Ex. C-10, cover note Ex. C-11, ledger/statement of A/c Exs. C- 12, 13, 14, newspaper cutting Ex. C-15, retail bill Ex. C-16, slip Ex. C- 17, retail invoice Ex. C-18, receipt Ex. C-19, running repair Ex. C-20, emails Exs. C-21 to 26, complaint to Police Ex. C-27, photographs Exs. C-28 to 38, news items Exs. C-39 to 44. On the other hand, Op No. 1 had tendered into evidence affidavit of Gagan Brar, GM Ex. R- A, job cards Ex. R-1 to R-6, challan No. 1849 dt. 25.7.12 Ex. R-7, registration certificate Ex. R-8, emails Ex. R-9, letter with postal First Appeal No. 255 of 2014 8 receipt Exs. R-10 & 11, FIR Ex. R-12. Op No. 2 had tendered into evidence affidavit of Anand Kumar Ex. R-2/A, FIR Ex. R-2/1, manual book Ex. R-2/2, letter dt. 10.4.13 Ex. R-2/3, job cards Exs. R-2/4 to 2/6.
7. After going through the allegations in the complaint, written versions filed by OPs, evidence and documents brought on the record, the complaint was allowed as referred above.
8. Aggrieved with the order passed by the learned District Forum, appellant/OP No. 1 has filed the present appeal.
9. We have heard the learned counsel for the parties and have carefully gone through the record of the District Forum.
10. It has been alleged that the District Forum has failed to appreciate the facts and circumstances of the case and has wrongly passed the order against Op no. 1 as referred above. The car was extensively used for 10 months. Defect was caused due to the leakage from injectors, which was duly rectified. No evidence has been placed on the record to prove that there was any manufacturing defect. After rectification of the defect, complainant was advised to collect his car through telephone/email but he did not come forward to collect the car, rather on 13.4.2013 he alongwith 25-30 persons came to the office of Op no. 1, created a ruckus and threatened the employees of Op No. 1 and FIR No. 5 dated 23.4.2013 under Section 323/283/342/149 IPC was registered against the complainant with P.S. Sahnewal, District Ludhiana, therefore, the order passed by the District Forum is liable to be set-aside. Whereas on the other hand, counsel for complainant has alleged that during warranty period First Appeal No. 255 of 2014 9 defects emerged n the new vehicle. He took the vehicle to Op No. 1 time and again to rectify the same but Op No. 1 did not rectify the goods. Order passed by the District Forum is correct. It be upheld and appeal filed by Op No. 1 be dismissed. False criminal case was got registered by Op No. 1 against him.
11. So far as registration of FIR No. 5 dated 23.4.2013 under Section 323/283/342/149 IPC against the complainant with P.S. Sahnewal, District Ludhiana, the matter is before the Investigation Agency. They will adjudicate whether the FIR was correctly recorded or not and what punishment is to be given to the complainant in case the allegations as alleged in the FIR are proved is within the domain of Court. Here as a Consumer Fora, we have to check it whether there was any manufacturing defect or any other defect and whether the same was rectified to the satisfaction of the complainant or not or whether the pleas taken by Ops are correct or not? As per the allegations of the complainant, after purchasing the car on 25.7.2012, in the month of February, 2013, he had gone for 3rd free service when some leakage was found and it was pointed out that certain injectors were not working, therefore, oil was not being supplied to the engine and then on 28.2.2013, when the complainant alongwith his family members was going from Ludhiana to Faridabad, near Sun Filling Station, Suraj Kund, the steering of the car had jammed and he had got it repaired from M/s Ragent Automobiles Pvt. Ltd., 14/5, Rubi Complex, Main Mathura Road, Faridabad, which was due to defect in the Alternator. Again there was leakage in the engine and he took the car on 3.4.2013. As per the version of Op No. 1 it was rectified and First Appeal No. 255 of 2014 10 on 10.4.2013. Complainant was asked to get the vehicle but he did not come forward. Whereas Op no. 1 in his written submission has taken the plea that when defect regarding leakage of the oil was pointed out by the complainant, he did not get it repaired due to short time.
12. Now we have to see what is the relevant evidence on the record. Job card dated 14.8.2012 is Ex. C-16. It was only for reassurance check up. Ex. C-17 is the job card dated 28.2.2013 in which break down, steering problem was pointed out. Rs. 500/- were charged, it was due to steering problem. Ex. C-20 is the job card dated 3.4.2013 in which diesel leakage was pointed out. Whereas Op No. 1 has placed on the record, the job card dated 12.3.2013 and 18.2.2013 in which the defect was pointed out to check diesel leakage and check engine whistling sound. It has been pointed out that Customer did not go for repair due to shortage of time but this job card does not contain the signatures of the complainant. Complainant has been visiting time and again of workshop of Op No. 1 for repair, therefore, without signatures of the complainant on the job card, it is not acceptable that he did not opt for repair. There is another job card Ex. R-2 dated 2.3.2012, again there is oil leakage problem. Ex. R-4 is the job card dated 3.4.2013, again there is problem of diesel leakage. There is another job card Ex. R-5, which shows that three injectors were changed on 23.7.2013. Whereas in the written reply plea has been taken by Op No. 1 that car was rectified and on 10.4.2013, call was given to the complainant but he did not come forward to get the car. In case car was ready on 10.4.2013, then what was the necessity First Appeal No. 255 of 2014 11 to change three injectors on 23.7.2013 in Ex. R-5. In para No. 6 of the complaint, it has been mentioned by the complainant that on 5.4.2013, complainant had suddenly visited the Workshop of Op No. 1 and he was surprised to see that the entire engine of the car has been down loaded and was lying open and some major repair seems to be undertaken there whereas it was fault of mere oil leakage. Whereas this fact has been denied by the complainant and no evidence has come forward from the side of the complainant with regard to opening of the engine assembly by the Mechanic of Op No. 1 on 5.4.2013. However, on the basis of evidence referred on the record that there was oil leakage from the engine and atleast three times the complainant had visited Op and they did not remove the defect/rectify the defect as desired within the warranty period, therefore, the complainant had to visit Ops time and again. A reference has been made to the judgment of Kerala State Consumer Disputes Redressal Commission i.e. "Sarathy Bajaj versus Radhakrishnan" IV (2015) CPJ (CN) 8A. In that case, the vehicle was sent for repairs several times but vehicle remained with the same defect. It was held that it was a case of deficiency in service.
13. Keeping in view the allegations of the complainant and the fact that Ops had failed to rectify the defect time and again, the District Forum has passed the order directing Op No. 1 to repair the car of the complainant to the satisfaction of the complainant within 15 days from the date of receipt of the order and in case the complainant is not satisfied then it be referred to an other Dealer to ascertain whether the engine of the vehicle has been overhauled or not and in First Appeal No. 255 of 2014 12 case it is found that the engine of the vehicle has been overhauled in that eventuality entire engine assembly has been ordered to be replaced, therefore, replacement of the engine assembly is subject to the proper removal of the defects/rectification. In case a new vehicle within the warranty period is reporting for defects repeatedly then Ops are under legal obligation to rectify/remove those defects or replace the defective parts as alleged by Op no. 2 according to the warranty conditions as given in the Owner's Manual. District Forum has passed the order keeping in view the terms and conditions as given in the Owner's Manual. Therefore, we are of the opinion that the order so passed by the District Forum is justified and is hereby affirmed.
14. In view of the above discussion, we do not see any merit in the appeal and the same is dismissed with no order as to costs.
15. The appellant had deposited an amount of Rs. 13,500/- and Rs. 10,000/- with this Commission in the appeal. These amounts with interest accrued thereon, if any, be remitted by the registry to respondent No.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
16. Remaining amount, if any due, shall be paid by appellant to respondent No.1/complainant within 30 days from the receipt of the copy of the order.
17. The arguments in this appeal were heard on 9.2.2016 and the order was reserved. Now the order be communicated to the parties as per rules.
First Appeal No. 255 of 2014 13
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member February 11, 2016. (Surinder Pal Kaur) as Member