State Consumer Disputes Redressal Commission
Hind Motors vs Pawan Kumar on 3 December, 2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal
Case No.
:
307 of 2012
Date
of Institution
:
06.09.2012
Date
of Decision
:
03.12.2012
1. Hind Motors India Limited, through its
Law Officer i.e. Mr.Mukesh Partap, Plot No.9 and 15, Industrial Area, Phase-I, Chandigarh.
2 Hind Motors India Limited, Accidental
Repair (Workshop) erstwhile mentioned at 815, Industrial Area, Phase-II, Chandigarh through its Works Manager, presently at Plot
No.09, Industrial Area, Phase-I, Chandigarh.
--Appellants
Versus
Pawan
Kumar son of Shri Tej Ram, age
about 41 years, resident of 272, Shivalik Vihar, Zirakpur, Punjab.
TATA Motors Ltd., through its Manager,
SCO No. 170-171, Sector 17-E, Chandigarh.
--Respondents
Appeal
U/s 15 of Consumer Protection Act, 1986
BEFORE: JUSTICE
SHAM SUNDER(Retd), PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Present:
Sh. Mohit Bhardwaj, Law Officer, for the appellants.
Sh. Vikramjit Singh Saini, Advocate for respondent No.1 Sh.P.K.Kukreja, Advocate for respondent No.2 PER JUSTICE SHAM SUNDER(Retd), PRESIDENT This appeal is directed against the order dated 27.7.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint of the complainant(now respondent No.1) and directed Opposite Parties No.1 & 2 as under ;
(a)To repair the vehicle in question for the faults mentioned in the estimate dated 24.03.2010; or in case, the Complainant had got the same repaired, during the pendency of the present complaint, he is entitled for the reimbursement upto Rs 83,000/- only;
(b)Opposite Parties No.1 & 2 are also saddled with the consolidated amount of compensation to the tune of Rs.15000/- on account of harassment and mental agony suffered by the Complainant ( c)To pay Rs.7,000/- as litigation costs.
The above said order shall be complied within 45 days of its receipt by Opposite Parties No.1 & 2; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para (a) & (b) above, apart from cost of litigation of Rs.7,000/-, from the date of institution of the complaint, till it is paid.
The complaint against Opposite Party No.3 was, however, dismissed.
2. The facts, in brief, are that the complainant purchased a Tata Indica Vista Quadra Jet car bearing Regn. No. PB-65-J-1695, for a sum of Rs.4,76,700.41 on 27.2.2009 vide Annexure C-1. The vehicle carried a warranty of 24 months, from the date of sale, or 75000 Kms, which event occurred earlier. The vehicle of the complainant started consuming excessive engine Mobil oil, in the month of March, 2010. The complainant approached the Opposite Parties and complained about the problem experienced by him. The mechanic of the Opposite Parties, after its examination, gave an estimate of Rs.83000/- for repairs, citing that the vehicle required engine overhaul, turbo charger, and lathe job. It was stated that the Opposite Parties refused to repair the vehicle, on the ground, that the oil sump (chamber) was found hit by some external force, as a result whereof, the defect in the engine occurred, which was not covered under the warranty conditions. They, however, asked the complainant to get the job done on payment basis. It was further stated that since the defects occurred during the warranty period, and not due to hitting of oil sump(chamber) by some external force, it was the duty of the Opposite Parties, to effect the requisite repairs, referred to above, but they failed to do so. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed.
3. Opposite Parties No.1 & 2, in their written version, pleaded that the complainant concealed the material facts, from the District Forum by not disclosing that the vehicle, in question, met with an accident and it was got repaired on 18.06.2009, from Garyson Motors, Ludhiana, after it had covered a distance of 9153 Kms. It was stated that the warranty of the vehicle lapsed, and, as such, the complainant was not entitled to the repairs aforesaid, without making payment for the same. It was further stated that the relationship of Opposite Parties No.1 and 2, with the manufacturer was on principal-to-principal basis. It was further stated that the problem could only be addressed by the manufacturer. It was further stated that there was neither any deficiency, in rendering service, on the part of Opposite Parties No.1 & 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. Opposite Party No.3, in its written version, almost took up the same preliminary objections, as were taken by Opposite Parties No.1 & 2 in their written version. It was stated that the Complainant had failed to follow the guidelines, given in the Operators Service Book as recommended for the smooth and better performance of the vehicle. It was further stated that the repairs, in question, did not fall within the ambit of warranty. It was further stated that Opposite Party No.3, was neither deficient, in rendering service, nor indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The parties led evidence, in support of their case.
6. When the complaint was fixed for final arguments, none put in appearance on behalf of Opposite Parties No.1 & 2, and, as such, they were proceeded against ex parte. However, the District Forum decided the complaint, on merits, as envisaged by Rule 4(8) of the Chandigarh Consumer Protection Rules,1987 read with Section 13(2) of the Act.
7. After hearing the Counsel for the complainant, and Opposite Party No.3, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening paragraph of the instant order.
8.. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties No.1 & 2.
9. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
10. The Counsel for the appellants, submitted that, no doubt, the vehicle in question, was purchased by the complainant from Opposite Parties No.1 & 2, for a sum of Rs.4,76,700.41 and the same was under warranty for a period of 24 months. He further submitted that the vehicle in question, after covering a distance of 9153 Kms., met with an accident, as a result whereof, its oil sump(chamber) was hit by some external force resulting into damage to the engine.
He further submitted that the accidental vehicle was got repaired by the complainant from Garyson Motors Pvt. Ltd., Ludhiana, as is evident from annexure OP1/1. He further submitted that since the vehicle was accidental, the warranty became null and void and repairs/replacement of the parts, could not be made under the terms thereof. He further submitted that this fact was concealed by the complainant from the District Forum. He further submitted that there was no manufacturing defect in the vehicle. He further submitted that the District Forum was wrong, in accepting the complaint, though there was neither any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. He further submitted that the order of the District Forum, being illegal, is liable to be set aside.
11. On the other hand, the Counsel for the respondent No.1/complainant, submitted that the vehicle did not meet with any accident, after covering the distance of 9153 Kms. He further submitted that the complainant never got the alleged accidental vehicle repaired from Garyson Motors, Ludhiana.
He further submitted that the vehicle was under warranty, when the defects were pointed out by the Service Adviser of Opposite Parties No.1 & 2, vide annexure C3, dated 24.3.2010 and the estimate thereof was given as Rs.83,000/-.
He further submitted that it was the duty of Opposite Parties No.1 & 2 to rectify the defects, pointed out by their Service Adviser, vide annexure C3. He further submitted that Opposite Parties No.1 & 2 were deficient, in rendering service and also indulged into unfair trade practice, by not rectifying the defects, as mentioned in C3.
He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
12. Purchase of the vehicle, in question, on 27.2.2009 for a sum of Rs.4,76,700.41/- through invoice annexure C1, was admitted. It was also admitted that the vehicle carried warranty of 24 months or 75000 Kms from the date of sale, whichever event occurred earlier. When the vehicle, on 24.3.2010 was taken to the service centre of Opposite Parties No.1 & 2, the Service Adviser of the same, after examining it, reported that the vehicle required engine overhaul, Turbo charger and Lathe job. The estimate of repairs was given by the Service Adviser of Opposite Parties No.1 & 2 as Rs.83,000/-. No doubt, he stated in Annexure C3 that these repairs did not fall within the ambit of the terms and conditions of the warranty as the oil sump(chamber) was found to have been hit by some external force. Mere observations of the Service Adviser, that the oil sump(chamber) was found to have been hit by some external force, could not be said to be conclusive. No detailed report of any expert was produced, on record, by Opposite Parties No.1 & 2 that the vehicle, in question, was accidental. The photograph Annexure C8 submitted by the complainant also did not show that the oil sump of the vehicle was hit by some external force. Had there been detailed report of some Automobile Engineer of Opposite Parties No.1 & 2 that the oil sump was hit by some external force, and, as such, it being accidental vehicle, the matter would have been different. Visual examination of photographs Annexures C7 and C8, did not prove that the vehicle met with some accident. Annexure OP1/1 purported to be a part of the record of Garyson Motors, Ludhiana, dated 18.4.2009, from where the vehicle was allegedly got repaired, after it allegedly met with an accident, was produced by the Opposite Parties.
This document does not bear the Vehicle No,, Engine No., Chasis No. and the name of the owner of the same. Even, the affidavit of the person, who prepared the document Annexure OP1/1,was not produced to support the contents thereof. This document is not at all connected with the vehicle, in question. Since this document is not connected with the repair of the vehicle, in question, no reliance thereon, could be placed by the Opposite Parties, to contend that the same(vehicle) met with an accident, and was got repaired from Garyson Motors, Ludhiana. The District Forum was also right, in discarding this document, for the reasons, aforesaid. Under these circumstances, the contention of the Counsel for the appellants/Opposite Parties No.1 & 2, to the effect, that since the vehicle was an accidental one, the repairs, referred to in Annexure C3 could not be carried out under the terms and conditions of the warranty, without making payment, being without merit, must fail and the same is rejected.
13. As stated above, when the vehicle was taken to the Service Centre of Opposite Parties No.1 & 2 on 24.3.2010 it was still under warranty. As per the terms and conditions of the warranty, it was the duty of Opposite Parties No.1 & 2, especially, when it was proved that it was not a case of accidental vehicle, to effect the requisite repairs, mentioned in annexure C3, without charging any amount, from the complainant. As stated above, vide annexure C3, Service Adviser of Opposite Parties NO.1 & 2, gave the estimate of repairs to the tune of Rs.83,000/-. Since Opposite Parties No.1 & 2 failed to carry out the repairs mentioned in Annexure C3 under the terms and conditions of warranty, but, on the other hand, asked the complainant to make payment, if he wanted the repairs to be carried out, they could be said to be highly deficient, in rendering service. No evidence was produced, on record, that the terms and conditions of the warranty were breached by the complainant.
14. The District Forum granted interest @ 18% p.a. on the failure of Opposite Parties No.1 & 2 to comply with its order within 45 days. In our considered opinion, interest @ 18% p.a., granted by the District Forum, is on the higher side.
If the same is reduced to 10% it would be just, fair and adequate. The order of the District Forum requires modification to this extent.
15. No other point, was urged, by the Counsel for the appellants.
16. For the reasons recorded above, the appeal is partly accepted, with no order as to costs, and the order of the District Forum is modified in the following manner ;
(i) The appellants/Opposite Parties No.1 &2 are directed to pay interest @10% p.a., instead of 18% p.a. as awarded by the District Forum in para-13 of the impugned order.
(ii) The other reliefs granted, and the directions given, by the District Forum, shall remain intact.
17. Certified Copies of this order be sent to the parties, free of charge.
18. The file be consigned to the Record Room.
Sd/-
Pronounced.
(Justice Sham Sunder)(Retd) December 3,2012 President.
Sd/- (Neena Sandhu) Member Js STATE COMMISSION (Appeal No.307 of 2012) Present: Sh. Mohit Bhardwaj, Law Officer, for the appellants.
Sh. Vikramjit Singh Saini, Advocate for respondent No.1 Sh.P.K.Kukreja, Advocate for respondent No.2 Dated: the 3rd December,2012 ORDER Vide our detailed order of the even date, recorded separately, the appeal has been partly accepted, with no order as to costs, with some modification in the impugned order as depicted therein.
(Neena Sandhu) (Justice Sham Sunder)(Retd) Member President