State Consumer Disputes Redressal Commission
Authorised Representative, Seva ... vs Shri. Anil Bansilal Chordiya on 15 November, 2011
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
First Appeal No. A/03/1594
(Arisen out of Order Dated 09/10/2003 in Case
No. 15/2002 of District Nashik)
1. Authorised Representative, Seva
Automotive Ltd.
Maruti Authorised Dealer,
Z-46, M.I.D.C., Ambad, Nashik
- 10.
...........Appellant(s)
Versus
1. Shri. Anil Bansilal Chordiya
Near Police Station, Manmad, Tal. Nandgaon, Dist. Nashik
2. Maruti Udyog Ltd.,
Assistant General Manager
Palam Pur Gaon Road, Gurgaon 122 015, Hariyana
3. The Chiarman / Managing Director, Maruti
Udyog Ltd.
11th floor, Jivan Prakash, 25 Kasturba
Gandhi Road, New Delhi
- 110 001.
4. The Service
Representative (W)
602, Madhav
Building, Bandra-Kurla Complex, Bandra
(W) - 51.
Mumbai
...........Respondent(s)
AND
First Appeal No. A/03/1735
(Arisen out of Order Dated 09/10/2003 in Case
No. 15/2002 of District Nashik)
1. MARUTI UDYOG LTD.
THROUGH ASST GENERAL MANAGER
(SR3), PALAM PURGAON RD,
GURGAON-122015 (HARIYANA).
2. THE
CHAIRMAN/MANAGING DIRECTOR
MARUTI UDYOG
LTD.,11TH FLOOR, JEEVAN PRAKASH,25, KASTURBA GANDHI ROAD, NEW
DELHI, 110001
3. THE SERVICE
REPRESENTATIVE (W)
602,MADHAV
BLDG.,BANDRA-KURLA COMPLEX, BANDRA(W),MUMBAI-400051
...........Appellant(s)
Versus
1. SHRI. ANIL B.
CHORADIYA
NEAR POLICE STAION,
MANMAD, TAL NANDGAON, DIST NASHIK.
2. AUTHORISED
REPRESENTATIVE
SEVA AUTOMOTIVE LTD.
MARUTI AUTHORISED DEALER Z-45, M.I.D.C AMBAD, NASHIK-10.
...........Respondent(s)
BEFORE:
Hon'ble Mr. P.N. Kashalkar
PRESIDING MEMBER
Hon'ble Mr. Dhanraj Khamatkar Member
PRESENT:
Mrs.Aarti Bhide, Advocate for
appellant/dealer in A-1594/2003.
Mr.Uttamchand, Advocate i/b. M/s.Consulta Juris for
appellants/manufacturer in A-1735/2003.
Mr.Mohit Bhansali,
Advocate for respondent No.1/org. complainant in both appeals.
ORDER
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member Being aggrieved by the judgement and award passed by District Consumer Disputes Redressal Forum, Nashik in consumer complaint No.15/2002 decided on 09/10/2003, whereby the District Consumer Disputes Redressal Forum allowed the complaint and directed the opponent Nos.1to3 jointly and severally to replace the Maruti Zen Car and give it to the complainant within reasonable time and if it is not possible to replace, refund amount of `3,94,779/-
to the complainant and also directed to pay `1,000/- as costs, opponent/Maruti Udyog Ltd. (Manufacturer) and Seva Automotive Ltd. (Dealer) have filed these two appeals.
Maruti Udyog Ltd. has filed Appeal No.1735/2003 and Authorised Dealer Seva Automotive Ltd. has filed Appeal No.1594/2003. Both these appeals have been filed challenging judgement and award passed by the District Consumer Disputes Redressal Forum, Nashik and therefore, we are disposing of these appeals by this common order.
2. The facts to the extent material may be stated as under :-
Complainant-Shri Anil Bansilal Chordiya, resident of Manmad, Tal.
Nandgaon, District Nashik had purchased Maruti Zen car Diesel on 04/12/1995 from opponent No.3-Seva Automotive Ltd., MIDC, Ambad, Nashik.
However, from the day one said car was not having pickup and heating problem and then car was sent for free servicing to Seva Automotive Ltd. at Nashik. Many times servicing was done, but complainant was not satisfied with the servicing and the defects remained as they were. According to the complainant he was using the Maruti car for last ten years. His other cars were trouble free, but this car supplied by opponent No.3 was giving him trouble. It was having some defects which cannot be removed by opponent No.3 despite servicing done. Within span of two years he was required to send car for servicing approximately 18 to 22 times and during this period, for 6 months car was lying for servicing in the garage of opponent No.3. The car used to get heating problem which could not be solved despite servicing. The other parts of the engine got damaged and according to the complainant it was manufacturing defect in the car. Every now and then the Service Engineer of opponent No.3 made some temporary repairs and gave car back to him but he alleged that the car was having inherent defects and they were manufacturing defects and therefore, he filed consumer complaint with a prayer that either the opponents should replace the car by giving a brand new car or should refund him back the amount of `3,94,779/-. He also claimed amount of `1 Lakh for mental agony. He filed documents and affidavit.
3. Opponent Nos.1to3 files written version and pleaded that complainant was using this car for commercial purpose and therefore, he cannot be permitted to file consumer complaint. They also pleaded that the vehicle was not having manufacturing defects. Before taking the vehicle out of factory the vehicle is thoroughly checked and unless all the authorities in the factory certified as OK, the car is not taken out from the factory and given it for sale. According to opponents, initially for free servicing the car was brought and after free servicing, at the cost of complainant the car was checked and serviced. They pleaded that within 14 days car had travelled the distance of 1877 km. then by 15/01/2000 it had travelled distance of 5333 km.
Then on 15/02/2000 the car had travelled distance of 7986 kms. If the car would have had manufacturing defects as alleged by the complainant, he would not have driven the car covering so much distance in a short span.
Therefore, they pleaded that complaint is bogus. They had done good servicing. They tried to remove all the defects and he was using the car daily by covering distance of 200 kms. per day and therefore, complaint lodged by the complainant is absolutely bogus and should be dismissed.
4. District Consumer Disputes Redressal Forum after hearing both the parties and after scanning the documents and service report, job cards produced before it, held that the vehicle was having manufacturing defects. It had got heating problem and since it was not initially taken care of it had affected other parts of the engine. One Mr.Lavendra Singh Vijay Shingh Girase had examined said vehicle and had certified that said vehicle was having heating problem. The certificate of S.T. Depot Manager, Ahmednagar was also relied upon by the complainant and on the basis thereof and on finding that the vehicle was taken for servicing by the complainant for 18 to 22 times, District Consumer Disputes Redressal Forum held that the vehicle was surely having manufacturing defects and that is why opponents had also extended warranty for period of six months after initial warranty of 12 months. District Consumer Disputes Redressal Forum held that since problem persisted in the car of the complainant despite servicing, the vehicle does have manufacturing defects and therefore, District Consumer Disputes Redressal Forum directed the opponents to give a brand new car within reasonable time and if it is not possible, refund the amount of `3,94,779/- to the complainant and to pay `1,000/- as costs. Aggrieved by this order, these two appeals have been filed, one by manufacturer and another by the dealer.
5. We heard Mrs.Arati Bhide, Advocate for Seva Automotive Ltd./appellant in A-1594/2003 and Mr.Uttamchand, Advocate for Maruti Udyog Ltd./appellant in A-1735/2003 and Mr.Mohit Bhansali, Advocate for respondent No.1/org. complainant in both these appeals.
6. We are finding that the District Consumer Disputes Redressal Forum surely erred in law in holding that the car was having manufacturing defects and therefore, it should be replaced. District Consumer Disputes Redressal Forum relied upon two reports of two persons produced by the complainant. At page-84 there is an Inspection Report given by S.T. Depot Manager, Ahmednagar, who certified that the vehicle Maruti Zen No.MH-15-AH-825 was inspected by him and according to him said vehicle was having following three defects :-
1.
Engine overheated due to failure in cooling system.
2. Cylinder Head, original fitment disturbed.
3. The coolant consumption is increased due to overheating.
This certificate even if it is to be accepted as certificate of expert from the automobile industry does not disclose that the car of the complainant is having manufacturing defects. These are the defects noticed by him which can well be taken care of by the appellants in both these appeals. District Consumer Disputes Redressal Forum could have directed appellants to take care of these defects and to remove the defects and give the defect free car to the complainant and to that extent District Consumer Disputes Redressal Forum would have been justified in allowing the complaint partly.
7. Second certificate is given by Mr.Lavendra Singh Vijay Shingh Girase, D.T.A.E. ( Madras), Vrundavan Nagar, Shahada at page-85. This certificate has been given by Mr.Lavendra Singh Vijay Shingh Girase who inspected the vehicle of the complainant and mentioned following defects in his report :-
The vehicle was having problem in the heating system which was not properly taken into consideration at the initial stage and due to overheating several time age of new vehicle are not enjoyable, due to over heating several times of rubber & allied part was damaged.
The problem in the engine and emission system is caused of manufacturing defect. Coolant consumption is high today. Performance of engine is substantially affected in point of consumption of diesel age and performance. Todays vehicle condition consideration age is totally affected. The part which is replaced are not replaced in short time or running upto 2 to 2.5 lakhs km. and cylinder head surfacing is not done upto 3 lakh km.
8. Now assuming that this certificate is also a certificate of expert, question is whether these two persons said to be an expert who can point out the manufacturing defects in the car manufactured by the Maruti Udyog Ltd. and sold by Seva Automotive Ltd. of Nashik. The S.T. Depot Manager, Ahmednagar cannot be said to be an expert in the automobile field. He may be having diploma in automobile engineering we do not know. He has not given his qualification and therefore, certificate given by Depot Manager cannot be acted upon to hold that he had given expert opinion in favour of the complainant. S.T. Depot Manager is not permitted to inspect vehicle owned by private party. He is in the employment of S.T. and without employers permission he was not supposed to make inspection of private vehicle owned by private person and to give certificate in that behalf. S.T. Depot Manager may be an administrative post and such person may not be having post graduation in automobile engineering. So, in the absence of his qualification and affidavit in support of this certificate, no credence can be attached to the certificate issued by S.T. Depot Manager whose name is not identifiable from the certificate.
9. Another certificate is of Mr.Lavendra Singh Vijay Shingh Girase, who claims that he is D.T.A.E. diploma in automobile engineering, but even this person who is diploma holder and doing some business or running a garage at Sahada cannot be said to be an expert from automobile field and he does not say that this vehicle is having inherent manufacturing defects. He has also not given his affidavit in support of his certificate. Normally, District Consumer Disputes Redressal Forum, State Consumer Commission and the National Commission are relying upon the report of ARAI or Western India Automobile Association of Mumbai. ARAI is the authority in the field. Complainant had not produced any report from ARAI and the certificates produced by the complainant are hardly useful to him to convince us that his vehicle is having manufacturing defects.
10. That apart, what is pertinent to note is the fact that from the day one the vehicle is being used by the complainant/respondent No.1 herein to undertake journey to and fro from Manmad to Nashik daily and he covers daily a distance of more than 100 km. in undertaking this journey. That is why within a span of few days his mileage meter showed that he was using the car very extensively. A chart produced by complainant himself at page-82&83 shows that the vehicle which was purchased on 04/12/1999 had travelled a distance of 79170 km. when it was taken for last servicing at Seva Automotive Ltd., Nashik which was done on 17/01/2002. There are Job Cards supporting these documents. So, within a span of one year roughly and few odd days upto 17/01/2002 the car had travelled 79170 kms. which showed that the vehicle was in roadworthy condition and it was used by the complainant daily and mileage shown in the meter shows that it had travelled more than 79,000/- kms. in the span of one year and a few months. Such vehicle in our view cannot be said the vehicle having inherent manufacturing defects which entitled the complainant/respondent No.1 herein to seek replacement of the vehicle. What is pertinent to note is the fact that the District Consumer Disputes Redressal Forum relying on the private certificates jumped to the conclusion that the vehicle was having manufacturing defects and directed in its award to both the opponents to replace the vehicle and if replacement is not possible, refund amount of `3,94,779/- to the complainant and to pay `1,000/- as costs. We reiterate that when the vehicle has travelled so much distance, when the vehicle is not having inherent manufacturing defects, when the certificates produced by the respondent No.1 are not supported by the affidavits, when those two certificates issued by two persons are not appearing to be experts from automobile field, District Consumer Disputes Redressal Forum ought not to have allowed the complaint with a prayer for replacement of vehicle or refund of whole of the price if replacement is not possible by the opponents. In our view the order of replacement or refund of money is bad in law and erroneous and patently illegal and palpably unreasonable and unrealistic. There are complaints involving some defects in goods. Defects are required to be removed by doing proper servicing and repairing. So, District Consumer Disputes Redressal Forum should have been justified in directing both the appellants to change the parts, do the proper servicing, do the requisite repairs and make the car roadworthy. This should have been the order passed by District Consumer Disputes Redressal Forum, but instead of passing this order, they relied upon the so called expert evidence on record, which was not reliable, they are not even experts from automobile field and District Consumer Disputes Redressal Forum jumped to the conclusion that there was manufacturing defects in the vehicle and it should be replaced by both the appellants or they should refund the moneys if replacement is not possible at their own. In our view the order passed by the District Consumer Disputes Redressal Forum is per se bad in law. So, by allowing these appeals partly we would direct the appellants to recheck the car, do re-servicing once for all and to give the car back to respondent No.1/complainant trouble free. This is the only order which can be passed in the instant case and for that purpose we will have to allow both these appeals partly.
11. It is also pertinent to note that one of the appellant/Maruti Udyog Ltd. has relied upon the judgement of the Supreme Court in the case of Maruti Udyog Ltd. V/s. Susheel Kumar Gabgotra & Anr., A.I.R. 2006 SC 1586. In this case, the Supreme Court held that, in the case of sale of defective car, as per warranty condition, replacement of defective parts is permissible and not the replacement of whole of the car. So, order of the Honble High Court directing replacement of the car was not proper. However, complainant is entitled to get replaced defective part at the cost of appellant. In our view this ruling is squarely applicable to the facts and circumstances of our case. When the car is sold by the appellant, warranty of one year is given and warranty stipulates that in case of any defects, defects would be removed free of charge and if any parts are required to be replaced, they would also replace free of charge during the warranty period. In the instant case, complainant was having problem of overheating of engine, problem of coolant system, malfunctioning and there were some other problems which could have been removed by thorough servicing by the appellants. But instead of directing the same, District Consumer Disputes Redressal Forum exceeded its jurisdiction in directing both the appellants to replace the car and to give a brand new car and alternatively directed both the appellants to refund full price of the vehicle which respondent No.1 had paid to them if replacement is not possible. Such an order in view of Apex Court judgement mentioned, supra, cannot be passed and therefore, for this purpose also, we have to allow these appeals partly to suitably modify the order passed by the District Consumer Disputes Redressal Forum. Hence, we pass the following order :-
-:
ORDER :-
1.
Both these appeals bearing Nos.1594/2003 & 1735/2003 are partly allowed.
2. In place of replacement of the car and/or refund of moneys, we direct both the appellants to do thorough servicing and repairs and they should replace the parts free of charge and remove the overheating and other related problems once for all and redeliver the vehicle back to respondent No.1/org. complainant. They should do so within two months from the date the respondent No.1/org. complainant brings his car at the Seva Automotive Ltd. at Nashik. As the natural corollary, we hold that consumer complaint is partly allowed.
3. Both appellants to pay `5,000/- each to the respondent No.1/org. complainant as cost of these appeals and bear their own costs.
4. Copies of the order be furnished to the parties.
Pronounced Dated 15th November 2011.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mr. Dhanraj Khamatkar] Member dd