National Consumer Disputes Redressal
Nuzhat vs Dee Dee Motors Pvt. Ltd. & Anr. on 3 December, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1053 OF 2016 (Against the Order dated 15/12/2015 in Appeal No. 177/2013 of the State Commission Uttaranchal) 1. NUZHAT D/O RAO ASHFAQ ALI, R/O VILLAGE SALEMPUR ROSHANABAD, P.S. KOTWALI, RANIPUR HARIDWAR UTTARAKHAND ...........Petitioner(s) Versus 1. DEE DEE MOTORS PVT. LTD. & ANR. 1-C, TYAGI ROAD, DEHRADAUN UTTARAKHAND 2. DIRECTOR, C.K. BIRLA Hindustan Motors Ltd.,
Birla Towers,
8th Floor,
25, Barakhamba Road, New Delhi ...........Respondent(s)
BEFORE: HON'BLE MRS. M. SHREESHA,PRESIDING MEMBER
For the Petitioner : Mr. Abhimanyu Singh, Advocate For the Respondent : For the Respondent No.1 : Mr. Anil Nauriya, Advocate
For the Respondent No.2 : Mr. Jayant Mehta, Advocate with
Mr. Rohit Ghosh, Advocate and
Ms. Smiti Verma, Advocate
Dated : 03 Dec 2019 ORDER
SMT. M. SREESHA, MEMBER
1. Challenge in this Revision Petition is to the common order dated 15-12-2015 passed by Uttarakhand State Consumer Disputes Redressal Commission at Dehradun (in short, 'the State Commission') in First Appeal Nos.105, 160 and 177 of 2013 preferred by M/s. Dee Dee Motors Pvt. Ltd.(hereinafter referred to as the 'Dealer'), Director, Hindustan Motors Ltd.(hereinafter referred to as the 'Manufacturer') and Ms. Nuzhat Ashfaq Ali, the Petitioner herein.
2. By the impugned order, the State Commission has allowed the Appeals preferred by the Dealer and the Manufacturer and set aside the order of the District Consumer Disputes Redressal Forum, Haridwar (in short, 'the District Forum'), thereby dismissing Complaint No.333 of 2008, preferred by the Revision Petitioner.
3. Facts in brief are that the Petitioner purchased an Ambassador 1500 DSL ACE II car for a sum of Rs.3,75,000/- on 25-04-2008. It is averred that when the vehicle was used, it was found that the pickup was low and there was a sound in the engine. The Petitioner informed the authorized Dealer about the defects in the car and was assured that the problem would be solved at the time of the next service. On 24-06-2008, when the vehicle went for service, the Dealer was informed about the manufacturing defects like low pickup, engine noise, the doors which were not set properly and some meandering from the wheel. It is averred that once again the Petitioner was informed that the problem would be solved by the next service. On 30-06-2008, the Dealer replaced some parts for which an amount of Rs.724.50/- was charged but the defects were not rectified. Once again, the Petitioner requested to replace the said vehicle which was under guarantee period but there was no response. On 07-10-2008, the Petitioner got issued a notice to the Opposite Parties seeking replacement of the vehicle together with compensation and costs and subsequently filed a Complaint before the District Forum.
4. The Dealer filed their Written Version denying all the allegations and stating that the Petitioner had complained of low pickup and some other defects which were repaired and the Petitioner had taken back her vehicle after full satisfaction. The Dealer had checked the vehicle under Job Card No.2597 and repaired all the defects to the satisfaction of the Petitioner. Once again on 24-06-2008 all the defects were rectified. On 28-06-2008, vide Job Card No.3113, the vehicle's clutch plate system was checked and the clutch plate, pressure plate, etc., of the vehicle were replaced under warranty. It is averred that the Dealer does not have the authority to replace the car and hence only those parts of the vehicle were changed which were under warranty to the satisfaction of the Petitioner. It was denied that the Dealer did not attend to the problem pointed out by the Petitioner. The wheel alignment was done on 29-08-2008, 4.5 litres of engine oil and oil filter was replaced during the third service which did not come under warranty and, hence, payment was taken. It was denied that there was any deficiency in service on behalf of the Dealer and they sought for dismissal of the Complaint against them with costs.
5. The Manufacturer filed their Written Version denying all the averments made in the Complaint. It is averred that the complaints of the Complainant were duly attended by the Dealer to the satisfaction of the Complainant. It is denied that there was any manufacturing defect in the vehicle and sought for dismissal of Complaint with cost.
6. Based on the evidence adduced the District Forum allowed the Complaint and directed the Opposite Parties to deliver new vehicle to the Complainant and in default, to pay a sum of Rs.3,75,000/- to the complainant together with damages of Rs.25,000/-.
7. On an Appeal preferred by the Manufacturer and the Dealer as also the Complainant for enhancement, the State Commission vide order dated 16-08-2012 remanded the matter back to the District Forum to provide an opportunity to the Complainant to produce cogent and reliable expert evidence as to whether there was any manufacturing defect in the car.
8. The District Forum based on the evidence adduced i.e. expert report dated 29-01-2013 issued by M/s. S.G. Motors allowed the Complaint directing the Opposite Parties to provide a new vehicle to the Petitioner in lieu of the old one or, in the alternative, pay Rs.3,75,000/- to the Petitioner together with costs of Rs.25,000/-.
9. Learned Counsel appearing for the Manufacturer vehemently contended that all the complaints were attended to by the Dealer within the warranty period and that there was no expert evidence adduced by the Petitioner by any reliable and qualified automobile engineer and that the District Forum without considering the expert opinion of the Manufacturer allowed the Complaint even after the remand made by the State Commission vide order dated 16-08-2012 directing the District Forum to pass the order on merits after looking into the expert opinion. The Learned Counsel appearing for the Manufacturer vehemently argued that the onus is on the Petitioner to prove any defects in the car which she has failed to discharge. It is also submitted that the Job Cards were not considered by the State Commission.
10. The Learned Counsel appearing for the Dealer submitted that IRDA report is in favour of the Opposite Parties and that this is the second round of litigation and that the Dealer cannot be held liable even if any manufacturing defect in the vehicle is proved. The Learned Counsel drew our attention to the inspection report on which the Petitioner places reliance and submits that the report is dated 29-01-2013 whereas in the report it is stated that the expert had conducted the check up on 06-10-2008 and, therefore, the report does not have any credibility. He further contended that there is no technical opinion in favour of the Petitioner and that the report given by M/s. S.G. Motors is by unqualified person whose name and qualification do not find place in the said report. The Dealer, before the District Forum, had filed his objections to the report stating that as per the report of the expert, M/s. S.G. Motors, the vehicle had run 27,000 kilometres but according to the report of the Surveyor Kuldeep Kumar, the vehicle had run 29,128 kilometers and also that the vehicle in question met with an accident on 28-08-2009.
11. Learned Counsel appearing for the Manufacturer vehemently contended that this report ought not to have been relied upon by the District Forum and that the report by Mr. Kuldeep Kumar, Surveyor & Loss Assessor ought to have been relied upon. It is seen that this report is dated two months subsequent to the report furnished by the Petitioner. This report is dated 06-03-2013 which is two months subsequent to the report furnished by the Petitioner and states that during the test drive there was no abnormal noise, the pickup was normal and all the four doors operated normally and there were no manufacturing defects in the car.
12. Learned Counsel appearing for the Manufacturer submitted that the State Commission had rightly observed that the Petitioner had completely failed to discharge the onus placed on them for proving that the automobile was suffering from manufacturing defect.
13. In the interest of justice and to balance the equities, since both the sides have filed expert opinions, the report relied upon by the Manufacturer and the Dealer is dated two months subsequent to the report of the Petitioner, we are of the considered view that the Job Cards and the problems which were pointed out by the Petitioner and the observations made thereof need to be taken into consideration.
14. It is the Petitioner's case that right from the inception i.e. from the date of purchase of car on 25-04-2008, the car had a low pickup with the sound in the engine. The first time the car was taken to Dealer's workshop was on 24-06-2008 when all the defects such as noise in the engine, low pickup, non setting up of the doors was explained. The material on record evidences that the clutch plate was changed within the first two months of the purchase. For better understanding of the case, the relevant Job Cards with the customer's observation and the job instructions are reproduced as hereunder:
Date
Customer's Observation
Job Instructions
12-05-2008
1st servicing engine oil & filter change
Pickup low
General check
u/w
Engine Sating u/w
Nut Bolt Check u/w
24-06-2008
2nd service engine oil and oil filter change
Low pickup
Front side vehicle noise
Steering hard
Front L/Side Seat Check
Frt. Wheel Check
Wheel Alignment
A/C Check
Oil consumption high
General check
Wiper check to be repaired
Head light adjusting
Enefe Sating u/w
at tapit adjusting
Steering bush u/w
to be repaired u/w
greasing w/a
u/w
u/w
cleaned u/w
u/w
u/w
u/w
28-06-2008
Back light change left side
Low pickup
Clutch slips
--
Clutch Handle, Clutch plate, pressure plate change u/w 29-08-2009 3rd Servicing Engine Oil and Oil Filter change Wheel Alignment Wiper check All lights check General Check All door setting Mobile Charger N/W Steering problem u/w Tyre wearing problem Wire check Adjust Replaced u/w Tapit adjusted u/w
15. From the afore-noted Job Cards it is clear that the Petitioner's car was having continuous problems with respect to low pickup, noise in the engine starting from the first month of purchase. The clutch plate was replaced on 28-06-2008. On 29-08-2008, the Petitioner had complained of steering problem, tyre wearing problem and the setting of the doors. We are of the considered view that the Job Cards show that the Petitioner had gone to the Dealer's workshop several times complaining of low pickup, noise in the steering and slipping of the clutch plate within the warranty period. It is the Petitioner's case that having purchased a new vehicle within a few months when a technical defect has arisen with noise in the engine and low pickup together with non-setting of the doors i.e. doors not opening and closing properly, the Petitioner does not choose to continue with the car and seeks replacement. The expert report relied upon by the Petitioner is dated 29-01-2013 which shows that there are manufacturing defects in the vehicle which are detailed as hereunder:
"1. There is additional voice in the engine of vehicle (missing), due to which, pickup of vehicle is very low.
2. Alignment is out, due to which, tyres have got scrubbed excessively and there is huge vibration in the engine.
3. Doors get opened itself while driving."
16. The definition of 'defect' as defined under Section 2(1)(f) of the Act is reproduced as hereunder:
" 'defect' means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods."
As can be seen 'defect' means any imperfection in quality or quantity or any fault. In the instant case when noise in the engine was not rectified and the low pickup continued, clutch plates were also replaced within few months of the purchase, it cannot be stated that there was no manufacturing defect in the car.
17. An Application, IA No.19783 of 2018, was filed seeking amendment of the cause title which was allowed.
18. Learned Counsel for the Petitioner relied on the judgments of the Hon'ble Supreme Court in C.N. Anantharam Vs. Fiat India Ltd. & Ors., (2011) 1 SCC 460, in which it was stated that if independent technical expert was of the opinion that there are inherent manufacturing defects, the Petitioner would be entitled to refund of the price of the vehicle and lifetime tax and EMIs along with interest @12% per annum and costs. He further relied upon the judgment of this Commission in Md. Hassan Khalid Haidar Vs. General Motors India Pvt. Ltd. & Ors, IV (2018) CPJ 115 (NC), in which it was held that the Petitioner had failed to provide any evidence to prove that the vehicle has any manufacturing defect.
19. In the instant case, it is seen that the Job Cards as well as the report given by M/s. S.G. Motors has established the case of the Petitioner that there were manufacturing defects in the car. Manufacturing defect is a defect which persistently comes up and cannot be rectified even after attempts made by the Dealer. The Oxford English Dictionary, Tenth Edition (Indian Edition) definition of defect is as under:
" a shortcoming, imperfection, or lack.'
20. For all the afore-noted reasons and keeping in view the definition of defects as defined under Section 2(1)(f) of the Act as well as the definition of 'defect', the Job Cards and the expert opinion of S.G. Motors, I am of the considered view that the said vehicle had a manufacturing defect and the Manufacturer shall take back the car and instead of a direction to replace the car with a new one, keeping in view that the model of the said Ambassador car is outdated and not in circulation, we direct the Manufacturer to take back the old car and to refund the price of the car i.e. Rs.3,75,000/- less 10% depreciation along with interest @9% per annum from the date of filing of the Complaint till the date of realisation together with costs of Rs.10,000/-.
Time for compliance, four weeks from the date of receipt of copy of this order failing which the amount shall attract interest @12% per annum for the same period.
21. In the result, this Revision Petition is allowed to the extent indicated above.
...................... M. SHREESHA PRESIDING MEMBER