State Consumer Disputes Redressal Commission
Regent Automobile Ltd. vs Lalit Bhasin & Anr. on 3 July, 2023
FA NO.493/2013
REGENT AUTOMOBILES LTD. V. LALIT BHASIN & ANR.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution:22.04.2013
Date of hearing:12.05.2023
Date of Decision: 03.07.2023
FIRSTAPPEAL NO.493/2013
IN THE MATTER OF
REGENT AUTOMOBILES LTD.
B-1/H-1, Mohan Cooperative Industrial Estate,
Mathura Road, New Delhi
...Appellant
(Through: Mr. Karnail Singh, Advocate)
VERSUS
1. LALIT BHASIN
10th Floor, Dakshineshwar
10, Hailey Road, New Delhi-110001.
2. GENERAL MOTORS INDIA PVT. LTD.
Chanderpura Industrial Estate,
Holol, District Panchmahal,
Gujarat-389351.
...Respondents
(Through: Ms. Ananya Marwah, Advocate)
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS PINKI, MEMBER (JUDICIAL)
MR. J.P. AGRAWAL, MEMBER
Present: None for the parties.
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FA NO.493/2013
REGENT AUTOMOBILES LTD. V. LALIT BHASIN & ANR.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts relevant that disbursal of the case as per the District Forum regard as under:
"1. The Complainant is an advocate enrolled in 1962. The O.P-l is a multinational company manufacturer of Opel Astra Club Car. The principal office of the OPs is at Halol, District Panch Mahal, Gujrat and marketing office at Palm Court, 20/4, Sukhraili Chowk, Mehrauli- Gurgaon Road, Gurgaon. Earlier the name of O.P-l was British Motor Car Company (1934) Ltd. The O.P-2 is the authorised dealer of O.P-1.
The Complainant purchased a new car Opel Astral Clubl.6 (petrol) from the O.P.-2, the dealer of O.P. No.1 for Rs.8,05,578/-. It is stated that within one month of purchase i.e. on 11.7.2000, the Complainant witnessed certain manufacturing defects related to engine such as over race, excess A/C cooling etc. At that time the car was traversed only 578 kms. On 25.7.2000, the car was sent to the dealer for removal of certain defects but the service provided by the dealer was not satisfactory. Hence, the car was sent again on 28.7.2000 and on 4.11.2000, to the dealer for correction of manufacturing defects which led to continuous physical and mental hardship to the Complainant. Only after few days, the Complainant again witnessed certain defects related to over- heating to the car/engine. All these problems occurred in the guarantee period. Again on 3.6.03 and 23.9.03, the car was sent for recurring defects. The Compressor of the car was replaced. Again on 22.1.2004, the car was sent for servicing and rectification of the defects relating to over-heating, leakage of oil and frost control etc. The Complainant was assured that all necessary rectifications have been carried out. On this assurance, the Complainant paid a sum of Rs.4,798/- but next day i.e. on 23.01.04 it was found that the car was getting over heated and fumes were seen coming out from the bonnet. The car had to be stopped and Complainant suffered undue harassment. Next day PAGE 2 OF 16 FA NO.493/2013 REGENT AUTOMOBILES LTD. V. LALIT BHASIN & ANR.
morning, the Complainant contacted the staff of the dealer who realised his negligence and deficiency in services and came to the Complainant's place to see the condition of the car. He was convinced that the car was having some problems. He took the car with him and assured the Complainant that he will bring the car back putting the same in order by 4.00 p.m. It was sent back and an amount of Rs.1729 was charged which was unjustified.
The Complainant had sent letter dated 24.1.04 to the dealer for their negligence and deficiency in service. On 15.9.04, 10.2.04 and 13.12.04, the car was sent for rectification of the recurring defects. Again on 2.4.05 and 4.4.05 it was sent for correction of the defects. Each time the dealer has charged undue amount from the Complainant. On 4.6.05 and 5.10.05, the car was again sent for certain recurring defects. The A/C fan and other parts were replaced by the dealer. Again on 10.5.06, 4.9.06 and 26.12.06, the car was sent for rectification of repeated defects. The Complainant sent letter dated 27.07.07 to the O.P-2 highlighting the deficiency in service and claimed compensation of Rs.50,000/- for harassment, trouble and hardship caused to the Complainant.
Further, on 6.8.07, the complainant sent reminder but no response was received from O.P-2. Again on 14.9.07, 15.9.07 and 26.12.2007, the car was sent for rectification for recurring defects. Each time the O.P. was unable to locate the cause of the problem in question. It is stated that the Complainant was unable to use the said car for the last 3-4 months due to persistent defects and as such the Complainant was deprived of his rightful use of the car. Therefore, the complainant sent another letter dated 14.6.08 to O.P-2 explaining his dissatisfaction but no reply was received. After being fed up with the repeated correspondence, the complainant wrote letter dated 4.8.08 to Automobiles Association of Upper India, a Pioneer Association engaged in development and management of automobiles expertise regarding inspection of vehicle. The vehicle was duly inspected by Association and submitted its report on 26.8.08. In the report, it is established that the vehicle has been suffering from inherent manufacturing defects. Thus, the Complainant had paid to the OPs for defective car and negligent services provided by them.
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Feeling aggrieved, the present complaint has been filed by the Complainant against OPs seeking directions to the OPs to pay Rs.8,05,576/- to the Complainants towards price of the car with interest @10% p.a., Rs.3,07,630/- towards amount incurred for repair, Rs.5,00,000/- for loss incurred by not attending meeting, Rs.20,000/- for loss of hiring alternative transportation and Rs.5,00,000/- as compensation and cost of litigation."
2. The said complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 was allowed by the District Commission, vide order dated 26.02.2013, whereby it held as under:
"Coming to the merit of the case, we find that the vehicle in question was purchased on 17.6.2000 and after short time of the purchase it gave trouble for the first time on 11.7.2000. The said vehicle continued to give problems and number of times the vehicle was sent to O.P.-2 for rectifying the defects. From the record, it is observed that the vehicle-in-question was repaired by the O.P.-2 on more than twenty occasions and every time some amount was charged from the Complainant. We understand that the Astra Opel Car is a costly car having all modern techniques and sophisticated mechanism. Such vehicle should not give any trouble in first few years from the date of purchase. These unusual problems given by the aforesaid car like over-heating coming out of fumes from the engine, the AIC not properly cooling etc. show that there is some serious defect in the engine which may be a manufacturing defect due to which the problems are recurring again and again. We also do not agree with the contention raised by O.P.-1 that the vehicle has visited the workshop on an average of four visits per year which is more than satisfactory.
We have also observed that after repairing the vehicle in question more than twenty occasions, the O.P.-2 assured that the vehicle is set right and will not give problem in future. We are of the opinion that when the vehicle was again and again sent to the O.P.-2 for repair, the O.P.-2 should have brought this fact in the notice of O.P.-l and both the OPs at that stage should have sent the vehicle PAGE 4 OF 16 FA NO.493/2013 REGENT AUTOMOBILES LTD. V. LALIT BHASIN & ANR.
for technical examination of their experienced experts to come to the conclusion as to whether the vehicle is suffering from some manufacturing defect or the problems are of routine nature. According to us, the continuous recurrence of the problems in the vehicle was very serious matter and should not have been taken casually considering the defects as usual problems. The Ld. Counsel for O.P.-2 has contended during the arguments that every time the vehicle came to the workshop with a different and new defect and every time the defect was rectified which shows that there was no manufacturing defect in the vehicle. We do not agree with this contention because the problems arose in the vehicle were of unusual nature and these problems may arise only due to some serious manufacturing defect.
Further, on the request of the Complainant when the vehicle was sent for technical expert opinion of Automobiles Association of Upper India who examined the vehicle thoroughly and submitted its report clearly mentioning that there are some manufacturing defects in the vehicle. The Automobiles Association of Upper India is an expert technical organisation and its report is worth believing. We have also placed our reliance on the case laws referred by the Complainant and come to the conclusion that the vehicle-in-question is having some manufacturing defects due to which it continuously gave problems and lastly stopped working. On going through the record we also find that the Complainant has spent a substantial amount on repairs of the vehicle and claimed a sum of Rs.3,07,639/-. From the car-record submitted by O.P-I we find that amount received by it towards repairs exceeds Rs.3.5 lacs, hence the claim of Rs.3,07,639/- of the Complainant deserve to be awarded. The vehicle is lying idle due to which the complainant has suffered lot of inconvenience, financial loss, harassment and mental agony. The OPs have committed gross negligence and deficiency in providing services. · As such, the Complainant is entitled for replacement of the vehicle or to get the cost of the vehicle, refund of the expenditure incurred on repairs and reasonable compensation for financial loss, harassment and mental agony.
Therefore, in view of the above mentioned discussion we issue the following directions to the OPs.
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a) To replace the vehicle in question by new one of the same model or alternatively to pay a sum of Rs.8,05,578/-. Along with interest @ 6% p.a. from 11.7.2000 till realisation to the Complainant. The OPs shall communicate their option to the Complainant within one week from the date of receipt of order
b) To pay a sum of Rs.3,07,639/- to the Complainant.
c) To pay a sum of Rs. 50,000/- towards the compensation for physical harassment and mental agony suffered by the complainant.
d) To pay Rs.10,000/- towards the cost of litigation."
3. Aggrieved by the aforesaid order of the District Commission, the Appellant/OP has preferred the present appeal, contending that the District Commission failed to appreciate that the vehicle was not suffering from any manufacturing defect as the vehicle had successfully covered huge mileage of 1 Lakh kilometer and during this period the vehicle was running in perfect roadworthy condition, that complainant has not denied the fact that whenever the vehicle was brought and the same was promptly attended and all the defects were removed, that when the vehicle is extremely used, some defects are bound to occur and the warranty is provided by the manufacturer to assure the purchaser that in case any defect occurs the same shall be removed free of charge, that the Complainant is not a consumer as the vehicle in question was purchased by the company in its name from the company's account and the expenditure on driver and running of car was being met by the Company, that the complaint was filed without any basis and without any job card, that the vehicle had met with accident on PAGE 6 OF 16 FA NO.493/2013 REGENT AUTOMOBILES LTD. V. LALIT BHASIN & ANR.
several occasions and for accidental vehicles the warranty ceased to be in existence and ignoring the same, the District Commission allowed the complaint; that the complaint was barred by limitation as the vehicle was purchased in the year 2000 and the complaint was filed in the year 2008.
4. The respondent has filed reply to the appeal. We have perused the appeal, the record of the District Forum and impugned order.
5. Appellant has contended that the complainant cannot be stated to be a consumer under the Consumer Protection Act 1986 as the said car was purchased by the company and as such the Complainant is not consumer within the meaning of Consumer as defined under the Consumer Protection Act, 1986.
6. To resolve this issue, we deem it appropriate to refer to Crompton Greaves Limited and Ors. vs. Daimler Chrysler India Private Limited and Ors. reported in IV (2016) CPJ 469 (NC), wherein the National commission held as under:-
"4. Going by the dictionary meaning, a car or for that matter any goods obtained and the services hired or availed by a company can be said to have been obtained or hired or availed for a commercial purpose, only if the said goods or services are intrinsically connected with, or related to the business or commerce in which the company is engaged. The acquisition of the goods or the hiring or availing of services, in order to bring the transaction within the purview of section 2 (1) (d) of the Consumer Protection Act, therefore, should be aimed at generating profits for the company or should otherwise be connected or interwoven with the business activities of the company. The purpose behind such acquisition should be to promote, advance or augment the business activities of the company, by the use of such goods or services. As observed by the Hon'ble Supreme Court in Laxmi Engineering Works (supra), it is not the value of the goods but the purpose for PAGE 7 OF 16 FA NO.493/2013 REGENT AUTOMOBILES LTD. V. LALIT BHASIN & ANR.
which the goods are brought or put to use, which is relevant to decide whether the goods were obtained for a commercial purpose or not. The same would be the position, where services are hired or availed by a company. If the business activities of a company cannot be conveniently undertaken without the goods purchased or the services hired or availed by a company, such purchase or hiring/availing as the case may be, would be for a commercial purpose, because the objective behind such purchase of goods or hiring or availing of the services would be to enable the company to earn profits by undertaking and advancing its business activities.
5. If a car or other goods are purchased or the services are hired or availed by a company for the personal use of its directors or employees, the purpose behind such acquisition is not to earn profits or to advance the business activities of the company. The purpose is to make certain facilities and amenities available to the directors and employees of the company as a part of the incentive offered to them by the company, as a reward or remuneration for the work which they are expected to perform for the company. It is not as if a company cannot run its business without providing such facilities and amenities to its directors and employees. It is not necessary for the business of the company, to provide such facilities and amenities to its directors and employees. Providing such facilities and amenities only motivates them to perform their work in an efficient and congenial environment, besides serving as an incentive aimed at eliciting better performance. The company does not earn profit merely by making a car or certain other goods or services available to its directors and employees. Therefore, it would be difficult to say that such goods are purchased or the services are hired or availed by the company for a commercial purpose."
7. Relying on the above settled law, we hold that the complainants are consumer under the Consumer Protection Act, 1986, as the said car was purchased for the personal use of the Complainant and the purpose behind such purchase was not to earn profits or to advance the business activities of the company. Therefore, the contention PAGE 8 OF 16 FA NO.493/2013 REGENT AUTOMOBILES LTD. V. LALIT BHASIN & ANR.
raised by the Appellant that the complainant is not consumer holds no merit and hence dismissed.
8. The other contention raised by the Appellant that the complaint is barred by limitation, as the vehicle was purchased in the year 2000 and the complaint was filed in the year 2008 and that there was no manufacturing defect in the vehicle.
9. Perusal of record shows that it is not disputed that the vehicle was purchased by the Complainant from OP No.1 on 17.06.2000 by paying an amount of Rs.8,05,576/-. On 11.07.2000, the complainant witnessed certain defects in the vehicle related to engine overace, excess a/c cooling and the vehicle was sent to OP on 25.07.2000 and 28.07.2000 and thereafter on 04.11.2000. Thereafter, on 03.06.2003, the vehicle was sent for certain recurring defects. The vehicle was again sent on 23.09.2003 and the compressor of the vehicle was replaced, however, the services provided was not to the satisfaction of the Complainant. It is stated that on 22.01.2004, the vehicle was sent for servicing and rectification of certain defects. It is stated that the car was sent on 15.09.2004, 10.12.2004, 13.12.2004, 02.04.2005, 04.04.2005, 04.06.2005, 05.10.2005, 15.06.2006, 04.09.2006, 26.12.2006, 30.01.2007, 07.06.2007, 09.06.2007, 26.06.2007 for rectification of recurring defects.
10. It is not disputed that the complainant had taken the vehicle to workshop for more than 20 times in a span of two years. It is also not in dispute that the vehicle has run about one lac kilometer. It is clear that the vehicle had been used extensively, which would not have been possible if there had been any manufacturing defect.
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11. In our view, the complainant had not been able to discharge its onus to prove the manufacturing defect, as alongwith the complaint no job card has been filed to show that the vehicle suffered from manufacturing defect. Further, during the period from 2000 to 2008, the vehicle had met with accident on several occasions and for accidental vehicles the warranty ceased to be in existence. There is no rebuttal to the allegation of accident.
12. The reliance placed upon by the Complainant is an inspection report dated 26.08.2008 by Automobile Association of Upper India. The report is reproduced as under:
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13. The aforesaid report is admittedly obtained after extensive use of the vehicle for eight years and till that time the vehicle had already run 89,511 kilometer. However, perusal of the report nowhere shows that there was any manufacturing defect, which cannot be repaired. Rather, there is recommendation that 'essential repairs and service of part as mentioned above to be carried out by an authorized service/repair centre for the vehicle to be restored in good running condition'.
14. Further, the Ld. District Commission has also placed reliance upon the report dated 06.09.2010, filed during the pendency of the proceedings. The said is also reproduced as under:
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15. Perusal of both the reports shows the mileage of the vehicle as 89,511 kilometer and that the reports are almost identical except the comments as mentioned at Sr. No.20 of both the report, which casts serious doubts upon the report. Even as per the reports till 2008, there was no manufacturing defect in the vehicle, however, it crept in the vehicle on 06.09.2010. There is no denying the fact that till the filing of the complaint before District Commission, the vehicle had run one lac kilometer and during this period it had also met with accident on several occasions. Further, even after filing the complaint, the vehicle was being run by the Complainant.
16. To sum up, we deem it appropriate to refer to "Santosh Devi Vs. Hyundai South Regional & Ors", reported as (2012) 3 CPJ 529 (NC), wherein, the Hon'ble National Commission while dealing with the similar matter, has held as under:
"The very fact that the said car within a span of three years 2 months run more than 60000 Kms. speaks that there is no inherent manufacturing defect with the said car and the problem with the said car is rather created by the complainant herself. When that is so, she is bound to pay the repair charges. If she abandoned the said car and failed to take the delivery of the same by paying repair charges, she has to thank herself. When complainant is at fault, she cannot allege the deficiency in service against the Ops. Viewed from any angle, complaint appears to be devoid of merit."
17. Further, in "Ajita Chit Fund Pvt. Ltd. Vs Teleco I (2007) CPJ 204 and Swaraj Mazade Vs. P.K. Chak Kapoor" reported as "II (2005) CPJ 72" wherein the Hon'ble National Commission has held as under:
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"In the case in hand, the Complainant had not filed report or affidavit of any expert to say that there was any manufacturing defect.
Extensive use of car also destroyed the case of the complainant that car had any manufacturing defect"
18. Reliance on decision of National Commission in Hyundai Motor India Ltd. vs. Surbhi Gupta 2014 SCC Online NCDRC 487 wherein it was observed that it was not even possible for the truck to run 48,689 kms in over a period of more than three and a half years if there was any inherent manufacturing defect. This is not the case in hand.
19. Further, reliance is placed on the decision of National Commission in Rakesh Kumar vs. Shimla Automobiles Pvt. Ltd. 2014 SCC Online NCDRC 478, wherein it was observed as under:
"Having considered the matter in its entirety, we find no ground to take a view different from the view taken by the State Commission. There is no material before us from which we may conclude that the vehicle suffered from any particular manufacturing defect. Therefore, no ground for replacement of the vehicle or for refunding the price of the vehicle to the petitioner/complainant was made out. Had there been some manufacturing defect in the vehicle it would not have run for as much as 85016 kilometers as on 17-12-2011. At a later date it was found that the vehicle had run 97,488 kilometers. The vehicle is still in possession of the complainant and must have been used further. In these circumstances, the finding of fact recorded by the State Commission cannot be said to be perverse so as to warrant interference by us in exercise of our revisional jurisdiction."
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20. In view of the foregoing, the facts of the present case reflect that the car in question had run about one lac kilometres during the period of 08 years from the date of purchase. Had there been any manufacturing defect, the vehicle could not have run so much. However, we are not oblivious of the fact that the vehicle encountered problems within a month of the purchase and on several occasion thereafter despite of multiple services in a row.
21. It is indeed true that if a brand new car gives trouble within a few days of its purchase, any consumer shall feel dissatisfied. In the present case the Respondent took the pains to take the new car to the workshop multiple times and no doubt, this constitutes mental agony which the Respondent was made to suffer due to the conduct of the Appellant.
22. In view of the foregoing, we modify the order passed by the District Consumer Disputes Redressal Forum (South West), to the extent that instead of replacing the said vehicle or refunding the complete amount of purchase, the Appellant is directed to pay a sum of Rs.2,00,000 on account of harassment, mental agony and pain within 45 days from the issue of this judgment failing which 9% interest shall be payable from the date of judgment till it is finally paid.
23. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
24. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
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25. File be consigned to record room along with a copy of this Judgment. Record of the District Commission be returned forthwith.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J.P. AGRAWAL) MEMBER Pronounced On:03.07.2023 PAGE 16 OF 16