State Consumer Disputes Redressal Commission
Smt G.Padmavathi W/O G.Ranga Rao vs 1. M/S Hindustan Motors Ltd.,And Others on 23 April, 2013
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.91 OF 2012 AGAINST C.C.NO.679 OF 2010 DISTRICT FORUM-II HYDERABAD Between: Smt G.Padmavathi W/o G.Ranga Rao aged about 70 years, Occ: Housewife R/o 32/3RT, S.R.Nagar, Hyderabad-038 Appellant/complainant A N D 1. M/s Hindustan Motors Ltd., Rep. by its Managing Director P.O.Hind Motor Dist.Hooghly-712233 West Bengal 2. M/s Hindustan Motors Ltd., Rep. by its Manager(Sales) H.No.6-1-339/13B, Near Sai Baba Temple, Padma Rao Nagar, Secunderabad-025 3. M/s Venkateswara Motors Pvt Ltd., Rep. by its Proprietor, H.No.3-5-170/A/12 Narayanaguda, Hyderabad-029 Respondents/opposite parties Counsel for the Appellant M/s Gopi Rajesh & Associates Counsel for the Respondent M/s C.V.Narasimham QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER TUESDAY THE TWENTY THIRD DAY OF APRIL TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The unsuccessful complainant is the appellant. She filed complaint claiming replacement of Ambassador car or in the alternative for refund of the amount of `5,78,000/- with interest and a sum of `1,00,000/- towards compensation for suffering mental tension and Rs.3,000/- towards costs.
2. The appellant purchased Ambassador car on availing loan of `5,78,000/- from Andhra Bank on 23.06.2008 and she paid balance sale consideration. The appellant paid consideration of `5,91,503/- to the respondents. The appellant said to have complained of car posing problems relating to engine, AC, power steering and gears. The third respondent stated to have collected an amount of `1328/- for first service on 25.02.2008 and `1406/- on 17.12.2008 during third servicing and did not rectify the problem. The appellant said to have approached M/s Vasishta Motors which said to have collected a sum of `759/- and failed to rectify the problems of the vehicle. Wheel alignment was stated to have been not done properly and the tyres were worn out.
3. As the second respondent said to have not attended to repairs of the vehicle and the appellant had taken to M/s Vashishta Motors which collected an amount of `276/- from the appellant on 13.07.2009, 3.02.2010 and 23.02.2010 which did not rectify the problems. The appellant got issued notice dated 20.05.2010 through her advocate to the second respondent which failed to give reply to the notice.
4. The first and second respondents resisted the claim on the premise that the appellant took the vehicle for first routine service on 25.08.2008 and the 3rd respondent rectified all the minor problems reported by the appellant. The amount was collected from the appellant for the items not falling within the terms of warranty. M/s Vasishta Motors attended to the problems and charged the appellant for consumable items. The appellant had not made M/s Vasishta Motors party to the complaint. After the vehicle was repaired the appellant after using it for six months had taken it for next servicing on 3.02.2010 and necessary service was done to the vehicle.
5. The appellant has not raised objection as to manufacturing defect in the vehicle. The car is an intricate piece of machinery which need regular maintenance and care by the appellant and any misuse and improper care and maintenance and consequential changes are expressly excluded from the scope of warranty.
6. The respondent no.3 remained exparte.
7. The appellant filed her affidavit and the documents, ExA1 to A25. On behalf of the respondents, the Assistant Manager Legal and Authorized Signatory filed his affidavit and the documents, Ex B1 and B2.
8. The District Forum dismissed the complaint on the premise that the appellant has not impleaded M/s Vashishta Motors or did not file affidavit of concerned from M/s Vashishta Motors. The District Forum observed that the bills and job cards referred to by the appellant do not show any manufacturing defect in the vehicle.
9. The complainant has filed appeal contending that the appellant is a senior citizen and the District Forum failed to consider the problems pertaining to engine, power steering , gears and AC and the appellant had taken the vehicle for free servicing to M/s Venkateshwera Motors and that the respondents played unfair trade on her by informing her that the car was fitted with turbo engine and supplied the car with non-turbo engine that the vehicle has poor pick up. It is contended that an automobile engineer, P.Nageshwer Rao opined that the engine of the car was not generating sufficient power and the engine was getting switched off frequently and that the power system of the car is defective. It is contended that the District Forum failed to consider the opinion of the expert.
10. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
11. The sale of Ambassador car by the respondents to the appellant for consideration of `5,91,503/- and after their dealership was terminated M/s Vashishta Motors which attended the repairs and bills were paid.
12. The brochure issued by the respondents would show that the car is equipped with power steering for easy maneuverability and greater control and MP3 CD player with remote as also 2000 cc diesel engine and rear A/c ducts. On 26.08.2008 the appellant paid to the respondent for purchase of oil filter, micro asc fitter and engine oil a sum of Rs.1328/-. As rightly contended by the respondents the amount spent on the consumable items would not fall within the terms of warranty. Similarly, the respondents collected an amount of Rs.1406/- from the appellant on 17.12.2008 for changing engine oil and wheel alignment and the amount cannot be said to have been collected arbitrarily for the same reason that the amount was received for consumable items.
13. The appellant had taken vehicle to Vasista Motors on 13.7.2008 for repair of battery clamp, 15 Amp fuse, D.F. bulb and on 26.2.2009 for change of power stra. Oil, fuel filler, on 13.7.2009 for general check up. On 13.7.2009 the appellant reported to Vasishta Motors that the car posed problem relating to steering, opening of the door and low pick up. Again on 3.2.2010 the appellant got repaired the car with Vasishta Motors during periodic service, the accelerator pedal and wheel alignment.
14. The appellant had for four more times taken the car to Vasishta Motors for general checkup and the problems reported therefor. The appellant has stated that as and when Ac was used, engine of the car became heat and in her notice she has mentioned that the respondent informed her that the power steering will be freed in the course of time and engine will get tuned after running for certain distance. She complained of improper wheel alignment as a result of which the tyres of the car said to have worn out before the mileage reached 20,000 kms.
15. P.Nageswara Rao Ex.Director, Central Institute of Tool Design Hyderabad submitted report stating that he inspected the vehicle and found the following problems: (Ex.A22)
1. While driving the vehicle, the engine is not generating sufficient power, and unable to pull in a proper way. It is getting heated up and becoming slow and feeling hard to run the vehicle even without Air-condition System.
2. Further, we noticed that the engine is getting stopping at frequent intervals due to over strain due to Low power engine and unable to run the A/C machine and car load together at a time.
3. The fitted engine is unable to maintain sufficient power to drive the vehicle even on normal roads and is totally failing, whenever going up road gradient. Hence suitable high power engine may be fitted for comfortable drive.
4. The Hydraulic power steering system is also defective and it is not functioning properly in normal way. The steering is very had and require hard muscle power of the driver, to drive the vehicle. This unit also may be required total change for comfortable drive.
16. He opined that the car is equipped with defective engine which is to be replaced with turbo engine of suitable capacity and the power steering is also to be replaced for smooth and comfortable driving. The learned counsel for the appellant has contended that the District Forum has not considered the report of Dr.Nageswara Rao and observed that the appellant has not filed the affidavit of the concerned from Vasishta Motors.
Admittedly, Vasishta Motors is the dealer of the respondents no.1 and 2. The appellant cannot be expected to file affidavit of the technicians of Vasista Motors. The dismissal of the complaint on the premise that the appellant failed to produce affidavit of technician belonging to Vasishta Motors is not sustainable.
17. Insofar as the report of Dr.Nageswara Rao is concerned, the learned counsel for the respondent has contended that the report is not supported by affidavit of Dr.Nageswara Rao whereas the counsel for the appellant has contended that the respondent had not denied the report of Dr.Nageswara Rao and as such no affidavit of the expert need be filed.
18. The number of times car was taken to the respondents would be sufficient to hold that the respondents did not attend to the problem s in proper manner. The report of Dr.Nageswara Rao would no doubt support the case of the appellant which however was issued without issuing notice to the respondents. The report of Nageshwar Rao is to be considered in the back drop of problems mentioned in job cards and the use of vehicle by the appellant between one servicing and another servicing without reporting any problem.
As such though the vehicle is said to have defect it cannot be said that the vehicle suffered from manufacturing defect. The main grievance of the appellant is that pickup of the car is much less when AC is on and as and when AC is on engine got heated.
Thus the three problems according to the appellant the vehicle posed are no much pickup, no functioning of AC and hard steering of the vehicle. The respondents branded them as minor defects and according to them cause for the problems is due to improper maintenance.
19. The respondents have not denied that the vehicle was given for servicing for several times to Vasishta Motors which is no other than the dealer of the respondents no1 and 2.
20. This Commission in Sri Gopal Auto Sotes Ltd and another vs Sri Neeripelli Veeranna and another in F.A.No. 313 of 2011 decided on 15.10.2012 and The Managing Director, Hero Honda Motors and another vs Sri B.Srikanth in F.A.No. 355of 2009 decided on 13.10.2009 dealt with the cases involving similar facts and circumstances.
21. B.Srikanths (supra) was a case where the motor cycle purchased by the complainant posed repeated problems such as making noise while the vehicle is operated in second gear and generation of severe heat in the engine, silencer and brake pedal within 15 minutes of the vehicle put in motion. The service engineer conducted test drive after replacing spindle gear shifter, spring gear shit drum and compound sfit stopper etc . It was found that there was no manufacturing defect in the vehicle. It was held:
Even in the case of manufacturing defect of a vehicle, the vehicle in toto cannot be ordered to be replaced in view of the judgment of the Honble Surpeme Court in Maruti Udyog Ltd., Vs Susheel Kumar Gabtora reported in AIR 2006 SCC 1586 wherein the Supreme Court opined that warranty condition referred only to the replacement of the defective part and not of the car. In another case, the Honble National Commission held in M/s TELCO Ltd., another Vs. M.Moosa, 1986-94 page 1367 (NS) that the section 14(1) of the Consumer Protection Act authorizes the forum to have the defects removed even if there are numerous defects which can be rectified and that it will be very hard on the manufacturer to replace the vehicle or refund its price merely because some defects appear which can be rectified or defective part can be replaced.
In view of the aforesaid discussion and in the light of the judgment of the Honble Supreme Court we do not find the respondent entitled to the replacement of motor cycle or refund of its cost
22. In Veerannas case, the complaint was made as regards to low pick up, low battery performance and clutch plate related problems. The job cards were considered as basis to find out whether inherent defect is found in the vehicle. The cost of the parts not covered by the warranty were held to be borne by the complainant at paragraphs 15 and 16 of the order as follows:
The first appellant during the first servicing of the vehicle replaced parts charging Rs.1079/- and waived the amount as goodwill gesture. The warranty terms mentioned in the manual cover certain parts of the vehicle subject to proper use and correct handling of the vehicle with exception to normal wear and tear of the components. The warranty will not apply in the following circumstances:
1.
If all free services/paid services/oil top-ups are not availed from the authorized Hero Honda workshops. As per their recommended schedule.
2. If Hero Honda recommended engine oil SAE-10W 30 SJ Grade (JASO MA) is not used.
3. To normal wear and tear components including but not limited to) brake shows, clutch shoes, bulbs, electrical wiring, filter, spark plug, fasteners, shims, washer, oil seals, gaskets, rubber parts, bush rubber bellows, plastic parts breakage and wheel rim for misalignment bend.
4. If additional wheel(s) is are fitted and/or any other modification carried out/accessories fitted other than the ones recommended by Hero Honda
5. If Super Splendor motorcycle has been sued in any competitive events like races or rallies or for any commercial purposes as taxi etc.
6. To any damage on motorcycles painted surface cropping due to industrial pollution or other external factors.
7. For normal phenomenon like noise, vibration, oil seepage etc., which do not affect the performance of the Motorcycle.
8. To any damage caused due to usage of improper oil/grease, non-genuine parts.
9. If any defect crops or repairs needed as a result fo using adulterated fuel.
10. If any maintenance/repairs required due to bad road conditions or misuses of Super Splendor motorcycle.
11. If any defect crops or repairs needed as a result of Super Splendor Motorcycle meeting to some accident.
12. For consumables like oil, grease, gasket etc., to be used during free services and/or warranty repairs..
13. To any part of Super Splendor motorcycle which has been tampered or got repaired at unauthorized outlet.
14. For Super Splendor motorcycle not used in accordance with the guidelines given in the owners manual.
16. In terms of warranty it is mandatory for the first respondent to avail all the free services as per the recommended schedule. Any defect observed in the motorcycle during the period of warranty and the part considered to be the cause of the defect, the second appellants obligation is restricted to repair or replace such part subject to the condition that such defect is not resulted due to improper driving or misuse of the vehicle
23. In the case on hand, the respondent sought for replacement of the car and the District Forum has not found any manufacturing defect in the vehicle. The report of Nageswara Rao would lend support to the case of the appellant insofar as the problems posed by the vehicle and their improper rectification by the respondent and it does not support the claim for replacement of the vehicle or refund of the amount.
24. The District Forum ought to have directed the respondents to check the car and attend to the problems without charging money from the appellant and it ought to have awarded a sum of `15,000/- towards compensation. As such, we are inclined to set aside the order of the District Forum.
25. In the result, the appeal is allowed setting aside the order of the District Forum. Consequently the complaint is allowed directing the respondents to check the car and attend to the problems without charging money from the appellant and pay an amount of `15,000/- to the appellant towards compensation together with costs of `3,000/- Time for compliance four weeks.
MEMBER MEMBER Dt.23.04.2013 కె.ఎం.కె*