State Consumer Disputes Redressal Commission
M/S Strands Saloon Pvt. L vs 1. M/S. Jaycee Automobiles Pvt. Ltd And ... on 20 November, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Consumer Complaint No. 62 of 2014 Date of Institution 02.06.2014 Date of Decision 20.11.2014 M/s Strands Saloon Pvt. Ltd., situated at SCO 423 (Top Floor), Sector 35-C, Chandigarh through its CEO Sh. Naunihal Singh S/o Jasbir Singh. .Complainant. VERSUS 1. M/s. Jaycee Automobiles Pvt. Ltd., Audi Chandigarh, 171, Industrial Area, Phase-1, Chandigarh through its Managing Director Sh. Rishi. 2. Audi AG International Customer Service, 85045 Ingolstadt, Germany. 3. Audi India, Head Office 3 Avenue Level No.3/4, Maker Max City, Bandra Kurla Complex Bandra East 022-40547200/40547205, through Mr. Joe King. . Opposite Parties. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT SHRI DEV RAJ, MEMBER
MRS. PADMA PANDEY, MEMBER Argued by:
Sh.
Rajesh Verma, Advocate for the complainant.
Sh.
V. K. Sachdeva, Advocate for Opposite Party No.1.
Opposite Party No.2 already exparte.
Sh.
Manish Jain, Advocate for Opposite Party No.3.
PER DEV RAJ, MEMBER The brief facts of the case, as alleged by the complainant, are that the complainant purchased Audi Q5
2.0 TDI vehicle from Opposite Party No.1, vide sale certificate dated 10.5.2012 (Annexure C-1) costing Rs.41,83,000/-, in the name of the Company, but for personal usage of its Chief Executive Officer and not for any commercial activity. It was stated that from the date of its purchase, the vehicle was suffering from inherent defects, which were brought to the notice of Opposite Party No.1, from time to time. It was further stated that the sunroof of the vehicle, being defective, was repaired but not replaced. It was further stated that similarly, some bearings were changed under warranty; disc pads were changed five times from the date of purchase, for which the complainant paid Rs.25,000/- every time. It was further stated that the water pump was also changed against payment. It was further stated that the complainant had purchased the vehicle, on the assurance of Opposite Party No.1 that it was a merchantable automobile, a luxury car, with all comforts and features, desired by the complainant.
2. It was further stated that on 20.02.2014, the complainant got 73 litres of diesel filled in the vehicle at 86588 Kms., at 6:00 A.M. from Lakhpur (Mohali) H. P. Gas Station, as per fuel filling receipt (Annexure C-2) and he was going from Chandigarh to Phagwara for his personal work. It was further stated that on 22.02.2014 when the CEO of the complainant started the car at 8:00 P.M., the same did not start and he called the customer care of Audi, Chandigarh, which assured of possible help the next day. It was further stated that on 23.02.2014, the vehicle was towed away to Chandigarh Audi workshop, but nothing was done to redress the complaint. It was further stated that the CEO of the complainant personally met two officials at Chandigarh on 25/26.02.2014, who told him to get the fuel checked. It was further stated that the complainant explained to Opposite Party No.1, that the mechanical operation of the vehicle had resulted in sudden failure, due to manufacturing defects, in the engine, which ceased. It was further stated that adulteration in the diesel/fuel could not be there, as the vehicle after fuelling from the petrol pump had run 500 KMs. It was further stated that the stand taken by Opposite Party No.1, that the fuel was adulterated was negated from the fact that the CEO of the complainant got the fuel checked from the petrol station, from where it was got filled, and as per the report (Annexure C-3), it was not adulterated and there were inherent defects in the engine of the vehicle.
3. It was further stated that the complainant received an email dated 20.3.2014 from the Opposite Parties, wherein they made a mention of some report of fuel from the alleged independent authorized legal body, which was not legally sustainable and maintainable, because the CEO of the complainant was not associated with the testing and also the report was made by some legal body and pertained to adulteration as per Bharat Stage 4 norms. It was further stated that Bharat Stage 4 norms referred to NCR region (National Capital Region of Delhi) and, thus, not applicable to fuel report because the said norms pertained to emission standards of four wheelers. It was further stated that the report of the Opposite Parties was not fuel adulteration report, and emission standards of the vehicle could not be termed as fuel testing. It was further stated that as per the guidelines of the Honble Court, the testing was to be done in an independent agency pertaining to the testing of fuel adulteration with technical details and expertise. It was further stated that even the complainant was doubtful regarding the manufacturing date i.e. month and year, as mentioned in Form 21 i.e. sale certificate, for which the Opposite Parties were requested many a time, to furnish a certificate only from the manufacturer as regards the same.
4. It was further stated that the Opposite Parties failed to supply the required documents pertaining to manufacturing of the vehicle in April 2012 but vide email dated 14.03.2012, they cleverly and mischievously mentioned the model, year of the vehicle as April 2012. It was further stated that this created a doubt in the mind of the complainant that the Opposite Parties had sold a vehicle prior to the year and manufacture mentioned in the sale certificate. It was further stated that the Opposite Parties sold a defective vehicle to the complainant and the report of adulterated fuel could not be termed as test report, whereas the report made by the fuel agency of the Petrol Pump was correct. It was further stated that the fuel was not adulterated and rather the engine was damaged due to manufacturing defects in the vehicle. It was further stated that Opposite Party No.1 damaged the vehicle and also its engine in order to harass the complainant. It was further stated that nothing had been done to repair or replace the vehicle by the Opposite Parties, which had been parked in the premises of Opposite Party No.1 since 23.02.2014, as a result whereof, the complainant has to spend Rs.5,000/- daily on transportation. It was further stated that when the engine ceased, the vehicle was under warranty and it was even covered under the extended warranty which expired on 10.05.2014. It was further stated that the Opposite Parties were liable to attend the vehicle under the conditions of warranty and replace the same with a new one or in the alternative, refund its price. It was further stated that the complainant served a legal notice dated 29.03.2014 (Annexure C-4) upon the Opposite Parties, which was replied vide letter dated 30.04.2014 (Annexure C-5), but to no avail.
5. It was further stated that the aforesaid acts of omission and commission, amounted to deficiency in rendering service and indulgence into unfair trade practice on the part of the Opposite Parties. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed seeking directions to the Opposite Parties to replace the vehicle with a new defect free vehicle of the same segment; in alternative, repair the vehicle under the conditions of warranty; pay Rs.5 Lacs as compensation for mental agony and physical harassment; Rs.4.50 Lacs spent by the complainant towards transport/travelling expenses and Rs.50,000/- as cost of litigation.
6. Opposite Party No.1 put in appearance on 8.7.2014. In its written statement, filed by way of affidavit of Mr. Deepak Jain, its Director, took up certain preliminary objections to the effect, that the complaint was liable to be dismissed at the threshold because the complainant did not approach the Commission with clean hands; the complaint was filed without any authority of the Company; the complainant was not a consumer in terms of the definition as provided in Section 2(1)(d) of the Act as the vehicle, in question, was purchased for business purpose and not for personal usage of the CEO of the Company; and the complaint was barred by limitation as the complainant immediately after the purchase of the vehicle on 10.5.2012, alleged manufacturing defect in the same, whereas the present complaint was filed on 31.05.2014/4.6.2014.
7. On merits, it was stated that M/s Strands Saloon Private Limited contacted and represented to Opposite Party No.1 to purchase an Audi Car, Model Q-5 for their business purposes. It was further stated that accordingly, the complainant Company through Mr. Naunihal Singh entered into a sale contract dated 10.05.2012 (Exhibit R-1/1) with Opposite Party No.1 in the name of M/s Strands Saloon Private Limited, SCO 423, Top Floor, Sector 35-C, Chandigarh for the purchase of vehicle Audi Q5 2.0 TDI Model, 2012, Exterior Color-ibis White, Interior Color Beige. It was further stated that pursuant to execution of the sale contract, Opposite Party No.1, sold the car, in question, to the complainant Company vide Invoice No.12-13/V0041 dated 10.05.2012 (Exhibit R-1/2) for Rs.41,83,000/- and the PAN number was also mentioned in the said Invoice. It was further stated that Opposite Party No.1 also issued sale certificate/Form No.21 dated 10.05.2012 (Exhibit R-1/3) to the Regional Transport Officer certifying that Audi Q5 2.0 TDI was delivered to M/s Strands Saloon Private Limited and the vehicle was held under agreement of Hire Purchase/Lease/Hypothecation with Tata Financial Services Ltd. It was further stated that after completion of all the formalities, and documents, the vehicle was delivered to the complainant Company alongwith all the documents, vide Gate Pass No.GP 12041 dated 10.05.2012 (Exhibits R-1/4 and R-1/5). It was further stated that the complainant Company though was required to make the complete payment at the time of delivery of the vehicle, but it paid Rs.14,66,000/- on 10.05.2012, Rs.27,12,550/- on 15.5.2012 and Rs.5,450/- on 19.05.2012, totalling Rs.41,83,000/- being the value of the vehicle and other charges.
8. It was further stated the above factual position clearly revealed that Opposite Party No.1 sold the vehicle to M/s Strands Saloon Private Limited, a Private Limited Company and also delivered all the necessary documents alongwith the vehicle. It was further stated that neither there was any manufacturing defect in the vehicle nor there was any deficiency in service on the part of Opposite Party No.1. It was further stated that Model Audi Q5 is the State of the Art High end vehicle having impeccable features and proven excellent quality standards world over. It was further stated that the complainant raised false grievance only in order to make extraneous financial gains. It was further stated that after sale of the car on 10.5.2012, the car was reported to the workshop of Opposite Party No.1 on 7.8.2012 for 15000 KM service since it had run 14511 KMs in less than 4 months. It was further stated that the brake pads of the car had worn out and required to be changed. It was further stated that the routine service was done and after change of brake lining etc., the car was delivered back to the complainant Company on 8.8.2012 alongwith Invoice dated 4.10.2012 (in fact 8.8.2012), which was duly received and signed by the representative of the complainant Company alongwith satisfaction note certifying the satisfaction with the work done (Exhibit R-1/6 Colly.).
9. It was further stated that on 4.10.2012, after having done 22,166 Kms, the car was reported to the workshop of Opposite Party No.1 with a minor complaint of Sun roof Noise in Bumpy Roads, which was duly attended and after carrying out necessary modulations, the car was delivered back to the complainant Company vide Invoice dated 4.10.2012, and its authorised signatory also signed the satisfaction note (Exhibit R-1/7 Colly.). It was further stated that on 21.11.2012, after having done 30,062 Kms, the car was again reported for 30,000 KM routine service, which after service, was delivered back to the complainant Company vide Invoice dated 21.11.2012, which executed satisfaction note (Exhibit R-1/8 Colly). It was further stated that the vehicle was again reported to the workshop of Opposite Party No.1, when it had done 41,218 KMs, on 6.2.2013, with the complaint of broken left hand side rear window glass, which was replaced and satisfaction note was signed (Exhibit R-1/9 Colly.). It was further stated that on 31.05.2013, at 55,516 KMs, the vehicle was reported with the complaint of brake pad light appearing in cluster due to worn out brake pads due to high usage and running of the car. It was further stated that the brake pads were replaced and satisfaction note dated 31.5.2013 was signed by the signatory of the complainant Company (Exhibit R-1/10 Colly.). It was further stated that on 25.7.2013, at 61,857 KMs, the vehicle was reported for annual inspection service, washing, wheel alignment and wheel balancing, vide work order, whereafter routine service was done and in lieu thereof, satisfaction note dated 25.7.2013 was signed (Exhibit R-1/11 Colly.). It was further stated that similarly, on 27.11.2013, at 76,103 KMs, routine service was done and brake pads were changed with other services vide work order & satisfaction note (Exhibit R-1/12 Colly.). It was further stated that brake pads are consumable/wear and tear items/parts which require replacement as per usage/running of the car and also depend on the driving pattern/habits of the driver and, as such, the replacement of brake pads after certain period of time was nothing to do with the manufacturing of the car as falsely alleged.
10. It was further stated that on 28.12.2013, at 79,113 KMs, the car was reported with low coolant level and water pump was replaced free of cost under warranty vide Invoice dated 30.12.2013 and satisfaction note (Exhibit R-1/13 Colly.) It was further stated that stone chip marks on front screen, local market nut fitted in front of LHS Fog Lamp Grill, front both headlights bracket broken and front grill cracked needed replacement, for which, the customer was informed but the complainant Company refused to get it done. It was further stated that thereafter on 24.2.2014, after the vehicle had done 86,988 KMs, the same was reported with the complaint that the engine did not start, upon which, Opposite Party No.1 immediately informed the complainant Company that on checking, it was found Fuel pressure low in fuel line and on further diagnosis, metal particles were found in the fuel line due to circulation of contaminated fuel. It was further stated that sample of diesel was taken and was found to be highly contaminated/adulterated and its color/odor was different from diesel. It was further stated that on further diagnosis, it was also found that high pressure pump, pressure control valve, rail, injectors with high pressure pipes, fuel pressure sender and overflow pipe with bleeder value required replacement.
11. It was further stated that on 25.02.2014, the sample of diesel was taken in the presence of the representative of the complainant Company, after duly signing the receipt note for test by him (Exhibit R-1/14). It was further stated that on 27.02.2014, Opposite Party No.1 prepared the estimate of Rs.4,50,064.91 (Exhibit R-1/16) for the replacement of parts and repair of the car and sent the same to the complainant Company vide mail dated 27.02.2014 (Exhibit R-1/15) and requested for approval so that the required parts could be ordered and the car could be repaired. It was further stated that, in return, the complainant Company sent email dated 1.3.2014 (Exhibit R-1/17 at Page 143) informing that the vehicle was under warranty and asked for the estimate, if applicable. It was further stated that after many emails (Exhibit R-1/18), the complainant became adamant for repair of the vehicle free of costs.
12. It was further stated that on the asking of the complainant, the sample of fuel was taken from the car in the presence of its authorised person and the same was sent for testing to an Independent Authorized Legal BodySGS Oil, Gas and Chemicals, who submitted their test report dated 15.3.2014 (Exhibit R-1/19), according to which, the contents of sulphur were totally out of specification at 270 mg/kg against maximum of 50 mg/kg and Kinematic Viscosity at 40 degree C was 2.391 mm2/s, which proved that the adulterated fuel was used in the car. It was further stated that as per the report of Fuel Adulteration consequences in India published in Scientific Reviews & Chemical Compositions on 28.9.2013(Exhibit R-1/20), the effect of adulteration in fuel causes mal-functioning of the engine, failure of components, safety problems etc. and this problem gets further magnified for high performance modern engines. It was further stated that on 20.03.2014, adetailed mail was sent by Opposite Party No.1 to the complainant Company informing that as per reports received, the fuel was found to be adulterated and the sulphur content was more than 5 times the normal limit, which was very harmful for the engine and the fuel line. It was further stated that it was nowhere stated in the report that this report pertained to Bharat Stage 4 norms, as falsely alleged by the complainant Company. It was denied that the report was not fuel adulteration report and the norms referred to in the report pertained to emission standards of four wheelers and emission standards of the car could not be termed as fuel testing. It was also denied that the report was used by the Opposite Parties to escape the liability from repairing the car under warranty. It was further stated that, however, keeping in view the relationship with the customer and as a pure gesture of goodwill, Opposite Party No.1 offered 10% discount on parts and also offered to waive off fuel testing charges and requested the complainant Company to give its approval by 25.3.2014 to repair the car, for which, various emails dated 20.3.2014 to 26.3.2014 (Exhibit R-1/21 colly.) were sent. It was further stated that on 28.04.2014, the complainant Company sent a false email (Exhibit R-1/22) stating that it did not receive the email with fuel report and further admitted that it has been more than a month I have been travelling through taxies for my business work. It was further stated that such an admission on the part of the complainant clearly proved that the vehicle was being used for commercial purpose. It was further stated that Opposite Party No.1 again sent fuel report vide email dated 28.3.2014 to the complainant, which vide its email dated 31.3.2014 admitted that fuel report was not satisfactory as per norms and vide email dated 2.4.2014 threatened to proceed legally (Exhibit R-1/23 Colly.). It was further stated that it was clear that from 10.5.2012 to 24.2.2014, i.e. for almost 21 months and after running 87,000 KMs, the complainant Company did not make any complaint about any problem in the vehicle or alleged manufacturing defect and on all the 5-6 occasions, the car was reported to the workshop of Opposite Party No.1 for routine service etc, which was duly carried out.
13. As regards the allegation of year of make and model, it was stated that the year of manufacturing was April 2012 as was evident from Purchase Certificate issued by Audi India (Exh R-1/24) and sale certificate was issued on 10.5.2012. It was denied that the Opposite Parties ever manipulated Form 21 and the suspicion of selling 2011 Model as 2012 model was also specifically denied. It was denied that the engine ceased due to any manufacturing defect, in the vehicle and the same remained in the workshop on many occasions due to inherent manufacturing defects. It was further stated that what was covered and what was not covered under warranty, was mentioned in the Warranty Manual (Annexure C-6) at running Pages 39, 40 and 41. It was further stated that Opposite Party No.1 was neither deficient, in rendering service nor did it indulge into unfair trade practice. The remaining averments, made in the complaint, were denied.
14. Opposite Party No.3, in its written statement, took up certain preliminary objections, to the effect, that the complaint, being absolutely and entirely baseless and frivolous, was filed with a deliberate and wilful attempt to extract money from Opposite Party No.3 and, as such, the same was liable to be dismissed on this sole ground. In the preliminary submissions, it was stated that the complaint disclosed no cause of action against Opposite Party No.3, as there was no deficiency in service on its part. It was further stated that the State Commission did not have the territorial jurisdiction to try the complaint as Opposite Party No.3 is situated outside the territorial jurisdiction of the Commission. It was further stated that the complainant being a Company registered and incorporated under the Company law of India, did not fall under the definition of consumer as defined in the Act. It was further stated that there was a direct nexus between the purchaser of the car and profit making activity by the complainant Company.
15. On merits, it was stated that the service record of the vehicle, in question, revealed that the said vehicle reported to the workshop for the first time on 7.8.2012 for a routine check-up and on the said date, the vehicle had already done more than 14,511 KMs. It was further stated that again on 4.10.2012, at 22,166 KMs, repair work of sunroof noise on bumpy roads problem was done to the complete satisfaction of the complainant. It was further stated that on 21.11.2012, at 30,062 KMs, annual inspection service of the vehicle was carried out, which was attributable to running repair plus usage. It was further stated that on 6.2.2013, at 41,218 KMs, broken left hand side rear window glass was replaced. It was further stated that on 31.5.2013, at 55,516 KMs, the problem of brake pad lights appearing in cluster was rectified by replacing the brake pads. It was further stated that on 25.7.2013, at 61,857 KMs, annual inspection service was carried out but the complainant refused to carry out wheel alignment, wheel balancing and wheel rotation. It was further stated that on 27.11.2013, at 76,103 KMs, again annual inspection service was done by changing brake pads. It was further stated that on 26.12.2013, at 79,311 KMs, the problem of coolant level low light appearing on cluster was rectified. It was further stated that at all the occasions, the representative of the complainant Company signed the satisfaction notes, to his entire satisfaction as regards routine service and minor repairs.
16. It was further stated that from the above service record (Annexure 1-8), it was clear that the vehicle was reported to the workshop more for the damages caused by the usage and not due to any technical or mechanical defects. It was further stated that problem of the sunroof, as alleged by the complainant, was not a mechanical or technical issue, as the sunroof was neither a standard fitment of the vehicle nor the said issue hampered the roadworthiness of the vehicle. It was further stated that it was absolutely false baseless and incorrect to state that the said vehicle, suffered from any mechanical or inherent defects. It was further stated that the vehicle, in question, suffered from the problem of not starting for the first time since acceptance of its delivery by the complainant (10.05.2012) and after completing more than 80,000 KMs, in less than 2 years from the date of delivery. It was further stated that the said problem of non-starting of the vehicle occurred due to external factors namely adulterated fuel which was got filled by the complainant, as per the sample test report (Annexure 9). It was further stated that the vehicle was never reported to the workshop for any manufacturing or technical defects. It was further stated that no vehicle suffering from any manufacturing or technical defect would have hassle free run for more than 80,000 KMs. It was further stated that the registration certificate provided to the complainant bore the manufacturing year and the same must be treated as a conclusive evidence of the year of manufacture as the registration certificate was issued by the Registration Authorities only after verification of the documents provided by the manufacturer and the same could not be manipulated.
17. It was further stated that the vehicle, in question, reported only once, at 79,311 KMs, with issues pertaining to wiring, wherein the complainant was provided all the benefits of warranty Policy applicable to the said vehicle. It was further stated that Opposite Party No.3 was neither deficient, in rendering service nor did it indulge into unfair trade practice. The remaining averments, made in the complaint, were denied.
18. Since none put in appearance on behalf of Opposite Party No.2, despite deemed service, it was proceeded against exparte on 19.8.2014.
19. The complainant filed replication wherein, it reiterated all the averments, contained in the complaint and repudiated those, contained in the written version of Opposite Parties No.1 and 3.
20. The complainant Company, in support of its case, submitted the affidavit of Sh. Naunihal Singh, by way of evidence alongwith a number of documents.
21. Opposite Party No.1, in support of its case, submitted the written statement by way of affidavit of Sh. Deepak Jain, its Director, alongwith which a number of documents, were filed.
22. Opposite Party No.3, in support of its case, submitted the affidavit of Sh. Harshavardhan Jogdand, its Senior Manager Legal, alongwith a number of documents, by way of evidence.
23. We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, as also written submissions of complainant and Opposite Party No.1 carefully.
24. The Counsel for the complainant, submitted that the vehicle Audi Q5 2.0 TDI, was purchased by the complainant from Opposite Party No.1 on 10.05.2012 for a price of Rs.41,83,000/- vide sale certificate (Annexure C-1). It was further submitted that the complainant got 73 litres diesel filled in the car on 20.02.2014 from Dasmesh Filling Station, Lakhpur, Mohali, H.P. Corp. Ltd. dealer as its C.E.O was going from Chandigarh to Phagwara and when he started the car on 22.2.2014 at 8.00 PM, the same did not start. It was further submitted that the complainant got help the next day and, finally, the vehicle was towed away to Chandigarh Audi Workshop. It was further submitted that Opposite Party No.1 conveyed that fuel, which was got filled by the complainant, was adulterated, due to which, the engine got ceased. It was further submitted that report of Dashmesh Filling Station was Annexure C-3. It was further submitted that in the report of fuel checking/certificate of analysis (Exhibit R-1/20) filed by Opposite Party No.1, the date on which the sample was taken, was missing and no affidavit of the person concerned was filed. It was further submitted that as per copy of the email dated 20.3.2014 (Exhibit R-1/21), the fuel checking was as per Bharat Stage 4 norms, which govern NCR region (National Capital Region of Delhi) and as such the same was not relevant. It was further submitted that document (Exhibit R-1/14 did not establish that the fuel sample was taken in the presence of the complainant. It was further submitted that the vehicle was taken to the workshop of Opposite Party No.1 for repair on many occasions and lastly under warranty/extended warranty, when the engine got ceased due to manufacturing defect. It was further submitted that the car was repeatedly taken to Opposite Party No.1, with brake pad problem, sunroof problem etc., as is evident from Exhibits R-1/6 to R-1/13. It was further submitted that the legal notice dated 29.03.2014 (Annexure C-4) was issued levelling para-wise allegations and the same was the basis of the complaint. It was further submitted that in letter dated 30.04.2014 (Annexure C-5) of Opposite Party No.1, sent to the complainant, nothing was mentioned with regard to the analysis report which was dated 15.3.2014. It was further submitted that as per terms and conditions of Audi Warranty (Annexure C-6), the same was for two years. It was further submitted that the vehicle was for the use of C.E.O of the complainant Company and, as such, the usage of the same was not connected with any commercial purpose. It was further submitted that the Opposite Parties could not take the defence that running of 87,000 KMs of the vehicle would mean that the same was being used for commercial activity. It was further submitted that the complainant is engaged in Saloon Industry business of makeup and beauty products and by any farfetched assumptions and presumptions, it could not be said that the vehicle costing Rs.41,84,000/- was being used for transporting goods like shampoos, lip sticks and powders. It was further submitted that during the proceedings of the complaint, the proposal for settlement was offered by Opposite Party No.1 and representatives of Opposite Parties No.2 and 3, which was not as per the commitment made by the Opposite Parties in the meeting. It was further submitted that when approval was not given by the complainant Company, then how Opposite Party No.1, could open the engine. It was further submitted that the vehicle, in question, was lying with Opposite Party No.1 and the complainant was deprived of the use thereof.
25. Counsel for Opposite Party No.1 submitted that the complainant Company was not a consumer under the definition of Section 2(1)(d)of the Act and, therefore, the complaint was not maintainable. It was further submitted that the complaint was barred by limitation. It was further submitted that the there was no manufacturing defect in the vehicle. It was further submitted that the vehicle was purchased on 10.5.2012 as is evident from sales contract (Exhibit R-1/1). It was further submitted that retail invoice dated 10.5.2012 (Exhibit R-1/2) was in the name of the complainant Company i.e. M/s Strands Salon Pvt. Ltd. and the Sale Certificate dated 10.05.2012, gate pass and delivery note (Exhibits R-1/3 to R-1/5) were also in the name of Strands Salon Pvt. Ltd. It was further submitted that the sale certificate and invoice, to the above effect, were supressed and not attached with the complaint by the complainant Company. It was further submitted that the vehicle of the complainant Company reported to Opposite Party No.1 on 24.2.2014 when it had covered mileage of almost 87,000 KMs within a period of 21 months. It was further submitted that it was clear from the contents of emails dated 3.3.2014 and 28.3.2014 (Exhibits R-1/18 and R-1/22) that the vehicle was being used for business purposes of the complainant Company. It was further submitted that, therefore, the averment, in Para No.1 of the complaint, that the vehicle was being used for personal use of the CEO of the complainant Company was incorrect. It was further submitted that once as per the documents of the complainant, it was clear that the vehicle was being used for business purposes, the complainant was not a consumer under the definition of the Act. The Counsel also placed reliance on General Motors India Pvt.
Ltd. Vs. G. S. Fertilizers (P) Ltd., First Appeal No.723 of 2006, decided by National Consumer Disputes Redressal Commission, New Delhi on 07.02.2013. It was further submitted that as per the allegations in Para 2 of the complaint, the vehicle was suffering from inherent manufacturing defects from day one. It was further submitted that from the date of purchase i.e. 10th May 2012 till 24.2.2014, the vehicle came to the workshop of Opposite Party No.1 eight times, but there was no complaint to this effect. It was further submitted that in Para 9 of the complaint, it was stated that model 2011 was sold as model 2012 but this point was not argued by the Counsel for the complainant Company. It was denied that the engine got ceased due to manufacturing defect in the vehicle. The Counsel submitted the details of the dates, mileage covered (KMs) and job/service rendered, as under:-
Sr. No. Date Mileage/ Distance covered (KMs) Work done
1. 07.08.2012 14,511 Service as per ELSA PRG, Check and report brake pad light appearing and complete washing.
Customer refused for wheel alignment, wheel balancing and wheel rotation.
2. 04.10.2012 22,166 Sunroof noise in bumpy roads.
3. 21.11.2012 30,062 Annual Inspection Service as per VVM.
4. 06.02.2013 41,218 Replaced R.H.S Rear window glass.
5. 31.05.2013 55,516 Replaced Front and Rear brake pads.
6. 25.07.2013 61,857 Annual Inspection Service as per VVM and complete car washing.
Customer refused for wheel alignment, wheel balancing and wheel rotation.
7. 27.11.2013 76,103 Annual Inspection Service, Front and Rear brake pads replaced, car washing, adjust & lubricate sunroof.
8. 28.12.2013 79,311 Coolant.
26. It was further submitted that the aforesaid jobs included routine service/annual service and repairs were done. It was further submitted that as per exclusion clauses 9 and 10 of the warranty, no consequential loss was covered. It was further submitted that the representative of the complainant Company recorded satisfaction notes as was evident from Exhibits R-1/6 to R-1/13 Colly. It was further submitted that the fuel sample was given to the representative of the complainant Company and as per email dated 01.03.2014 (at page 144 of the file), the complainant Company was informed that the fault occurred in the vehicle due to usage of adulterated/contaminated fuel and, as such, the repair work as per the attached estimate, could not be covered under the warranty. It was further submitted that as per Report dated 15.3.2014 (Exhibit R1-/19), which was from a renowned lab, the fuel was adulterated. Referring to literature at Exhibit R-1/20, the Counsel submitted that the contents of sulphur at 270 mg/kg as against maximum of 50 mg/kg were totally beyond specifications and Kinematic Viscosity at 40 degree C was 2.391 mm2/s, which proved that the adulterated fuel was used in the car. It was further submitted that adulteration of fuel causes mal functioning of the engine, failure of components, safety problems etc. and problem gets further magnified for high performance modern engines. It was further submitted that blending of lubricants into kerosene as a substitute for diesel is a type of fuel adulteration. It was further submitted that as per the literature, the same method was indicated. It was further submitted that the complainant Company was free and at liberty to counter the report with the report of an expert.
It was denied that the vehicle was damaged in the shape of dents etc. when it was in the custody of Opposite Party No.1. It was further submitted that the complaint was filed on 31.05.2014 (in fact 2.6.2014), whereas the application for placing on record the vehicle condition report form and photographs of 28.05.2014 showing alleged damage caused by Opposite Party No.1 was filed on 29.09.2014. It was further submitted as to what prevented the complainant from filing the photographs alongwith the complaint, when the same were already available on 28.05.2014. The Counsel placed reliance on Classic Automobiles Vs. Lila Nand Mishra & Anr., 2010 (2) CPJ
67.
27. The Counsel for Opposite Party No.3 submitted that the vehicle, in question, was purchased on 10.05.2012 and the complaint, regarding manufacturing defect was made when it had already covered more than 80,000 KMs approximately. It was further submitted that the complaint as regards non-starting of the vehicle was raised, when the complainant got 73 litres of adulterated/contaminated fuel (diesel) filled in the vehicle at 86599 Kms., at 6:00 A.M. from Lakhpur (Mohali) H. P. Gas Station. It was further submitted that the certificate (Exhibit C-3) by one Sh. Rajiv Sharma, who is not an expert, was only with regard to quantity as per standard of Weight and Measure Department, and the same did not say anything about the quality of the fuel. It was further submitted that no affidavit alongwith any expert report to controvert that the fuel used was not adulterated, was filed. It was further submitted that it was clear from the Certificate of Analysis dated 15.03.2014 (Annexure-9), that the total sulphur content was 270 mg/kg and Kinematic Viscosity was also on the higher side.
28. The first question, which falls for consideration, is, as to whether the complainant is a consumer as defined under Section 2(1)(d) of the Act. Section 2(1)(d) of Act is reproduced hereunder:-
(d) "consumer" means any person who
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.For the purposes of this clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
29. No doubt, it has been averred by the complainant, in the complaint, that the vehicle was purchased for the personal usage of the C.E.O of the complainant Company. The Counsel for the complainant has submitted that in sales contract (Exhibit R-1/1), Shri Naunihal Singh has been indicated as Companys nominee. No cogent evidence that vehicle was used for personal usage of the C.E.O and not for business activities has been adduced. On the other hand, we find weight in the argument of the Counsel for the Opposite Parties, that the vehicle, in question, was used for business purposes of the complainant Company. In support of his contention, the Counsel for Opposite Party No.1 relied upon sales contract (Exhibit R-1/1); retail invoice (Exhibit R-1/2) and sale certificate (Annexure R-1/3), which were in the name of Strands Salon Pvt. Ltd., the complainant Company. It is also evident from the contents of emails dated 3.3.2014 and 28.3.2014 (Exhibits R-1/18 at Page 147 and R-1/22 at Page 196) sent by the complainant to Opposite Party No.1 that the vehicle was being used for business activities. Thus, it is established, on record, that the vehicle, in question, was not purchased for personal use of the C.E.O of the complainant Company but for its business activities. The vehicle was, thus, purchased and used for commercial purpose. In General Motors India Pvt. Ltd. Vs. G. S. Fertilizers (P) Ltd.s case (supra), the National Commission observed that interpretation of Section 2(1)(d) of the Act relating interalia to purchase of goods has been well settled by the Honble Supreme Court in Laxmi Engineering Works Vs. P.S.G Industrial Institute, 1995 (3) SCC 583 and held in Para 10, interalia, as under:-
10. Since the instant case pertains to the purchase of goods admittedly for commercial purposes since the vehicle was purchased by a private limited company for its Managing Director, this case is squarely covered by the above judgment of the Honble Apex Court. The State Commission erred in not taking note of this important fact while deciding the complaint. Even otherwise, we note that the Respondent-Complainant has not been able to produce any evidence, including that of an expert to indicate that there was any manufacturing defect in the vehicle..
In view of the law settled by the National Commission in General Motors India Pvt. Ltd. Vs. G. S. Fertilizers (P) Ltd.s case (supra), the complainant cannot be said to be a consumer under Section 2(1)(d) of the Act. The Consumer Complaint is, thus, not maintainable.
30. Even if, it is assumed that the complainant is a consumer, the next question, which falls for consideration, is, as to whether there was any inherent manufacturing defect, in the vehicle. It is evident, on record, that the vehicle, in question, came to the workshop of Opposite Party No.1 on 7.8.2012, 4.10.2012, 21.11.2012, 6.2.2013, 31.5.2013, 25.7.2013, 27.11.2013 and 28.12.2013. As per the Job sheet dated 7.8.2012 (Exhibit R-1/6), the vehicle was reported to the workshop for the first time on 7.8.2012 for a routine check-up, at 14,511 KMs. Further Exhibit R-1/7, Job Sheet dated 4.10.2012, showed that at 22,166 KMs, repair work of sunroof noise on bumpy roads problem was done to the complete satisfaction of the complainant. As per Job Sheet dated 21.11.2012 (Exhibit R-1/8), at 30,062 KMs, annual inspection service of the vehicle was carried out, which was attributable to running repair plus usage. Subsequently, on 6.2.2013, as per Job Sheet (Exhibit R-1/9), at 41,218 KMs, broken left hand side rear window glass was replaced. Job Sheet dated 31.05.2013 is at Exhibit R-1/10, according to which, at 55,516 KMs, the problem of brake pad lights appearing in cluster was rectified by replacing the brake pads. Subsequently, on 25.7.2013, as per Job Sheet (Exhibit R-1/11), at 61,857 KMs, Annual Inspection Service was carried out but the complainant refused to get the wheel alignment, wheel balancing and wheel rotation done. Further, at 76,103 KMs, according to Job Sheet dated 27.11.2013) (Exhibit R-1/12), again Annual Inspection Service was done by changing brake pads. On 30.12.2013, at 79,311 KMs, as per Job Sheet (Exhibit R-1/13), the problem of coolant level low light appearing on cluster was rectified. From the details of repairs/service as per the above details, which have also been tabulated in Para 25 above, which are based on the documentary evidence, on record, the service/various jobs of the vehicle were carried out to the entire satisfaction of the complainant/its representative (Exhibits R-1/3 to R-1/13) and despite the vehicle having been extensively used, the complainant never had any complaint regarding any inherent manufacturing defect. Moreover, the problem of break pads was reported only twice, which was apparently due to extensive usage and normal wear and tear. No expert evidence was produced by the complainant to prove inherent manufacturing defect in the vehicle. Therefore, the argument of the complainant that the vehicle was having inherent manufacturing defect, when it had already covered 88,000 KMs and especially when there was no allegation on this account for 21 months, is devoid of merit and the same stands rejected. Consequently, the question of replacement of the vehicle, in question, does not arise at all. In Classic Automobiles Vs. Lila Nand Mishra & Anr.s case, the National Commission held that in the absence of expert opinion, it is difficulty to hold that there was any manufacturing defect in the vehicle. The facts of Classic Automobiles Vs. Lila Nand Mishra &Anr.s case, relied upon by Opposite Party No.1 are fully applicable to the facts of the instant case.
31. The next question, which falls for consideration, is, as to whether, the engine of the vehicle got ceased due to use of adulterated/contaminated fuel or not. It is in evidence, by way of fuel filling receipt (Annexure C-2) that on 20.02.2014, the complainant got 73 litres of diesel filled in the vehicle at 6:00 A.M. from Lakhpur (Mohali) H. P. Corporation Ltd. Station when the complainant was going to Phagwara. The CEO of the complainant Company has stated that when on 22.2.2014 at 8.00 PM, he started the car, the same did not start and on his complaint, the same (vehicle) was towed to the workshop of Opposite Party No.1, for which, it (Opposite Party No.1) submitted repair estimate of Rs.4,50,064.91 (Exhibit R-1/16) for replacement of parts and repair of the car and sent the same to the complainant Company vide email dated 27.02.2014 (Exhibit R-1/15). It is the stand of Opposite Party No.1 that the engine of the vehicle got ceased due to the use of adulterated fuel. The fuel was got tested from SGS Oil, Gas and Chemicals, a renowned laboratory and analysis report is dated 15.03.2014 (Annexure R-1/19). According to the said report, the sulphur content at 270 mg/kg against the maximum of 50 mg/kg and Kinematic Viscosity at 40 degree C being 2.391 mm2/s, were out of specifications, which proved that the fuel, which was got filled in the car, was adulterated/ contaminated. Perusal of literature (Exhibit R-1/20) reveals that adulteration causes mal-functioning of the engine failure of components, safety problems etc. and the problem gets further magnified for high performance modern engines. On the other hand, certificate (Annexure C-3) of Sh. Rajiv Sharma of Dasmesh Filling Station, was to the effect that the sample brought by Mr. Sham Sunder, Driver of Audi Q5 CH01AR-00607 was as per standard of Weight and Measure Department. This report does not speak of the quality of the diesel, which was got filled in the vehicle. Though the complainant has placed, on record, affidavit of Sh. Rajiv Sharma, who has stated that the quality of diesel was 100% fine but even his qualification has not been mentioned. He, therefore, cannot be said to be an expert in the line. Thus, report (Exhibit R-1/19) of the renowned laboratory has not been controverted by the complainant Company by leading any cogent and convincing expert evidence. Therefore, the plea of the complainant Company that the fuel used in the vehicle was not adulterated and it (vehicle) was having manufacturing defect, being devoid of merit, stands rejected.
32. As regards contention of the complainant that the test report of Bharat Stage 4 norms is not applicable to the instant case, Opposite Party No.1 (M/s. Jaycee Automobiles Pvt. Ltd.) in affidavit of Mr. Deepak Jain, its Director, in Para No.6, has categorically testified that it was nowhere stated in the report that the same (report) pertained to Bharat Stage 4 norms. It was also testified that it was also wrongly and falsely stated by the complainant that the report was not fuel adulteration report and the norms referred to therein pertained to emission standards of four wheelers and emission standards of the car could not be termed as fuel testing. The complainant, in Para 6 of the replication, terming the contents of the written statement as wrong, stated that the report (Annexure C-3) of Dashmesh Filling Station established that the fuel was not adulterated. As already discussed above, the report (Annexure C-3) is only with regard to quantity and not quality and no reliance thereon can be placed.
33. The next question, which falls for consideration, is, as to whether, the vehicle was under warranty. As per Audi Warranty (Annexure C-6), two years unlimited warranty is for new vehicle against defects in manufacturers material or workmanship; genuine Audi parts against defects in manufacturers material and genuine Audi accessories-against defects in manufacturers material.
However, in the instant case, the warranty also covered the replacement of filters, oil, lubricants, fluids and coolant only to the extent, the replacement part was necessary as per warranty service on a covered component. The warranty also contained exclusions. Exclusions 8 to 10, being relevant are extracted hereunder:-
8. Damage or malfunction caused by misuse such as racing, competitive events or driving over curbs.
9. Damage or malfunction caused by using contaminated or improper fuel, operating fluids, or other chemicals.
10. Damage or malfunction caused by using additives in fuels or fluids and coolant.
Thus, in the instant, case, when the fuel used was adulterated/contaminated, the vehicle, in question, was not covered under warranty and the repair for the same was to be undertaken by Opposite Party No.1 only against payment. It is evident from Para 3(p) of the preliminary objections of the written statement of Opposite Party No.1 that as a goodwill gesture, Opposite Party No.1 offered 10% discount on parts and also offered to waive off fuel testing charges. Since as per evidence, on record, the engine of the vehicle ceased due to the use of adulterated fuel and the vehicle was not covered under warranty, it (Opposite Party No.1) could repair the same only against payment of Rs.4,50,064.91, for which the estimate (Exhibit R-1/16) was submitted.
34. The next question, which falls for consideration, is, as to whether any damage was caused to the vehicle by Opposite Party No.1 after the same was brought to its workshop. The estimate could only be prepared after opening the engine. It is evident from Invoice dated 30.12.2013 (Exhibit R-1/13), which is against repair order dated 28.12.2013 that following observations were made thereon:-
Stone chip marks on front screen customer informed.
Local market nut fitted in front LHS fog lamp grill customer informed.
Front both headlight bracket broken customer informed.
Front grill crack needed replacement customer informed.
Therefore, the allegation of the complainant that Opposite Party No.1 caused damage to the vehicle, is apparently without any basis and the same being bereft of any merit, stands rejected.
35. In view of the above discussion, the complainant has failed to make out any case of inherent manufacturing defect, deficiency in rendering service or unfair trade practice on the part of the Opposite Parties and, as such, the complaint filed by him deserves to be dismissed.
36. For the reasons recorded above, the complaint, being devoid of merit, is dismissed, with no order as to costs.
37. The complainant shall be at liberty to take back its car, which according to it, has been standing in the workshop of Opposite Party No.1, against receipt.
38. Certified Copies of this order be sent to the parties, free of charge.
39. The file be consigned to Record Room, after due completion.
Pronounced.
November 20, 2014.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad STATE COMMISSION (Consumer Complaint No.62 of 2014) Argued by:
Sh.
Rajesh Verma, Advocate for the complainant.
Sh.
V. K. Sachdeva, Advocate for Opposite Party No.1.
Opposite Party No.2 already exparte.
Sh.
Manish Jain, Advocate for Opposite Party No.3.
Dated the 20th day of November 2014.
ORDER On 29.09.2014, the complainant moved an application for placing, on record, vehicle condition report form dated 24.02.2014 and the photographs showing the damage caused by Opposite Party No.1, to the vehicle.
2. Reply to the aforesaid application was filed by Opposite Party No.1, by way of affidavit of Mr. Deepak Jain, its Director. However, Opposite Party No.3 did not file any reply to the aforesaid application.
3. Heard on the application aforesaid.
4. It is important to mention here that the document viz. vehicle condition report form dated 24.02.2014, sought to he placed, on record, by the complainant vide the aforesaid application, has also been annexed by Opposite Party No.1 alongwith its reply as Exhibit R-1/25.
5. The complaint was filed on 2.6.2004 and the vehicle condition report, sought to be placed, on record, is dated 24.02.2014 and even the photographs were taken on 28.05.2014 before filing the complaint. The complainant has not put forth any convincing and cogent reason for not placing on the record, the above documents. No plausible reason, has been assigned, as to what prevented the complainant, from producing these documents, on record, at the time of leading evidence. Even in the face of facts and circumstances of the case, vehicle condition report dated 24.2.2014 and the photographs sought to be produced by way of additional evidence, are of no relevance especially when the same (photographs) were allegedly taken at a belated stage. Thus, there is no justification, whatsoever, to allow the application, for placing on record the aforesaid documents, by way of additional evidence, at this stage.
6. Accordingly, the application is dismissed.
7. Arguments in the main complaint already heard.
8. Vide our detailed order of the even date, recorded separately, the complaint, being devoid of merit, is dismissed, with no order as to costs.
9. Certified copies of this order be sent to the parties free of charge.
Sd/-
(DEV RAJ) MEMBER Sd/-
(JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Ad