National Consumer Disputes Redressal
Anand Kumar Bansal vs M/S. Premier Ltd. & Anr. on 31 July, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2815 OF 2015 (Against the Order dated 22/07/2015 in Appeal No. 23/2015 of the State Commission Haryana) 1. ANAND KUMAR BANSAL S/O SHRI TILOK CHAND BANSAL R/O WARD NO.14, BHADRA, DIST. HANUMANGARH RAJASTHAN ...........Petitioner(s) Versus 1. M/S. PREMIER LTD. & ANR. THROUGH ITS MANAGER, REGD. OFFICE AT PUNE ROAD, CHINCHWAD PUNE-411019 MAHARASHTRA 2. ROYAL PREMIUM AUTOMOBILES THROUGH ITS PROPRIETOR/PARTNER/MANAGER, OPPOSITE AIRFORCE STATION, DABWALI ROAD,SIRSA,DISTRICT SIRSA HARYANA ...........Respondent(s) REVISION PETITION NO. 2816 OF 2015 (Against the Order dated 22/07/2015 in Appeal No. 90/2015 of the State Commission Haryana) 1. ANAND KUMAR BANSAL S/O SHRI TILOK CHAND BANSAL R/O WARD NO.14, BHADRA, DIST. HANUMANGARH, RAJASTHAN ...........Petitioner(s) Versus 1. ROYAL PREMIUM AUTOMOBILES & ANR. THROUGH ITS PROPRIETOR/PARTNER/MANAGER, OPPOSITE AIRFORCE STATION, DABWALI ROAD, SIRSA,DISTRICT SIRSA HARYANA 2. M/S PREMIER LTD. THROUGH ITS MANAGER, REGD. OFFICE AT PUNE ROAD,CHINCHWAD PUNE-411019 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER
For the Petitioner : Mr. Avanish Kumar, Advocate. For the Respondent : For Premier Ltd. : Mr. Anurag Bhatt, Advocate.
For Royal Premium : Mr. Bhisham Singh, Advocate for
Mr. Brijender Kaushik, Advocate.
Dated : 31 Jul 2019 ORDER
PER HON'BLE M. SHREESHA, MEMBER
Challenge in these Revision Petitions under Section 21(b) of the Consumer Protection Act, 1986 (for short the "Act") is to the order dated 22.07.2015 in First Appeals bearing No. 23/2015 & 90/2015 passed by the Haryana State Consumer Disputes Redressal Commission (for short "the State Commission"). By the impugned order, the State Commission has allowed the Appeals preferred by M/s Premier Limited and M/s Royal Premium Automobiles and set aside the order of the District Consumer Disputes Redressal Forum, Sirsa (for short "the District Forum"), which has allowed the Complaint.
2. The facts in brief are that the Complainant purchased a new car from Royal Premium Automobiles, arrayed as the First Opposite Party in the Complaint, (hereinafter referred to as "the Dealer") manufactured by Premier Limited, arrayed as the Second Opposite Party in the Complaint, (hereinafter referred to as "the Manufacturer") on 31.12.2011 against payment of ₹5,95,000/- apart from paying a sum of ₹20,220/- towards VAT. At the time of purchase of the car, the Dealer issued warranty for three years/50,000 kms against all manufacturing defects. The Complainant got the afore-said car registered with the Registering Authority, Motor Vehicles, Hanumangarh and the same was allotted registration No. RJ31CB/3132. Just after a few days of purchase of the said car, it developed defects as the same started to heat up while in use, consume excess mobile oil and the average consumption of fuel by the car was quite low i.e. only 10 km/pl whereas the Opposite Parties claimed the same to be 16 km/pl. The air conditioner of the car also did not work properly. The Complainant got the car serviced on 09.02.2012 at 5048 kms; IInd service on 16.03.2012 at 11020 kms and IIIrd service on 26.05.2012 at 15482 kms. The defects were reported to the Dealer who assured that the said defects would disappear with the use of the vehicle and that he should not worry about the same. In April, 2012, the Complainant, along with his family members, was going from Bhadra to Chhitorgarh in the subject car. When they reached Bhilwara, the engine of the car developed some defect and got heated, started emitting noise and stopped on its own. The Complainant contacted Mr. Rakesh Sharma, Manager of the Dealer who told the Complainant that he was sending a vehicle to the spot, which would tow the car of the Complainant and would bring the same to the service centre. The Complainant was assured that after its repair, the vehicle would be returned to him. However, despite the said intimation, nobody came. The Complainant again contacted Mr. Rakesh Sharma, who told the Complainant to get the vehicle checked-up from a local mechanic and the cost of the said repair would be refunded to him. The Complainant after waiting for a sufficiently long period of time, got the car checked from a local mechanic of Bhilwara, who charged ₹5,000/- but even then the car did not start. The mechanic of Bhilwara stated that the engine and pump of the car were defective. The Complainant had no other option, but to wait for the mechanic to be sent by the Dealer but nobody came there despite a telephonic message to the said Manager. Left with no other option, the Complainant arranged some other vehicle for taking the defective car to the service centre of the Opposite Parties. He paid a sum of ₹3,000/- towards towing charges. The Dealer made payment of ₹13,000/-. The Dealer kept the vehicle for 30 days. The Complainant made several visits to the Dealer for repair of the vehicle and also for returning the same but the Dealer put off the matter by saying that the Engineer of the Manufacturing Company would inspect and repair the vehicle. The Dealer after keeping the above vehicle for 30 days, returned the same to the Complainant, but even then the above problems in the engine could not be rectified. The said problems still subsist in the subject car and the same is not working properly. It is stated that there is a manufacturing defect in the said car and the same requires replacement. The Complainant approached the Opposite Parties and requested them to either replace the subject car with a new one or refund the price, but there was no response.
3. The Dealer, in the Written Statement, admitted the selling of the car to the Complainant but denied the rest of the Complainant's pleadings. It was stated that: there was no manufacturing defect in the car; that as and when the car was brought to the service centre, due to normal wear and tear, it was duly repaired and returned and thus there was no deficiency of service on the part of the Dealer; that the liability, if any, is of the Manufacturer.
4. The Manufacturer filed their Written Version stating that the warranty was given to repair or replace the vehicle free of cost subject to terms and conditions mentioned in the Policy; mileage depends upon the driving habits, conditions of road, purity of the fuel etc.; normal wear and tear cannot be considered as manufacturing defect and that the Complainant failed to establish that the car was having any manufacturing defect. All other averments made by the Complainant were denied.
5. District Forum allowed the Complaint after observing thus:-
"14. Learned counsel for the opposite parties have also contended that in order to prove manufacturing defect, the complainant should have got it examined in some workshop by some expert and in absence of report of expert, it cannot be said that vehicle has any manufacturing defect in it. To support the contention, learned counsel have cited Tarsem Kumar Garg vs. Mahindra & Mahindra Ltd. & Anr. III (2007) CP 395. We have considered the contention and have gone through the ruling, but in the facts and circumstances of the case in hand, we find no merit in the contention and that the citation has no bearing on the facts of the case in hand. Expert report is not must, in each and every case to establish manufacturing defect. When manufacturing defect could be established by some other ample evidence on record, then expert evidence is not required. As above discussed and found, within a short period of four months of the purchase, its engine had to be replaced and second replaced engine had also to be replaced, after six months. Even prior to first replacement of the engine, number of times, vehicle had to be brought in the service centre of opposite party no. 1, with different major problems. Therefore, manufacturing defect is amply established. In Tarsem Kumar Garg's case (supra), engine of the vehicle had seized due to the negligence of the complainant and not due to any manufacturing defect in the vehicle. But, here in the case in hand, certainly, engine had seized because of some inherent defect in it and so had to be replaced.
15. Learned counsel for the opposite parties have also cited R. Baskar vs. D.N. Udani & Ors., IV (2006) CPJ 257, Classic Automobiles Vs. Lila Nand Mishra & Anr., 1 (2010) CPJ 235 and Maruti Udyog Ltd. Vs. Casino Dias & Anr., IV (2009) CPJ 144. We have also gone through these citations, but find that the same have no bearing on the facts of the case in hand. In R. Baskar's (supra) case, there was malafide intention on the part of the complainant, to refuse the delivery when vehicle was satisfactory repaired and when the opposite party was ready to give satisfactory certificate in this regard. In that case, there was also nothing to suggest any manufacturing defect in the vehicle.
16. However, there is no dispute with the proposition of law, as is held in Classic Automobile's (supra) that dealer is not liable, unless shown that vehicle sold by manufacturer was on principal to principal basis. In this regard, here, in the case in hand, even dealership agreement is not placed on record, so it cannot be presumed that it was on principal to principal basis liability, between the dealer and manufacturing company. Admittedly, the complainant had purchased the vehicle, from opposite party no. 1 for valuable consideration, having manufacturing defect in it. It was manufactured by opposite party no. 2. The complainant is the 'consumer' of opposite party No. 1. Therefore, both the opposite parties have joint and several liability towards the complainant. Since, the vehicle, sold was having manufacturing defect in it, so primarily, liability is of the manufacturing company i.e. of opposite party no. 2.
17. In Maruti Udyog Ltd.'s case (supra), there was nothing to support the allegation of manufacturing defect, therefore, order for directing the replacement of the vehicle was set aside, but the opposite party was directed to give it to the complainant in road worthy condition and free from any defect.
18. The complainant has suffered a lot mentally, as well as, financially. In April, 2012, he had to face difficulty when he was travelling in the car along-with his family members when the car had stopped all of a sudden. For it, he had to spend sufficient amount for sending the car to the service centre of opposite party no. 1, besides incurring expenses for getting it checked from local mechanic. In the circumstances, it is very clear that the complainant is entitled for due compensation for his harassment, mental agony etc., beside for this forced litigation.
19. Resultantly, this complaint is hereby allowed, with a direction to the opposite parties, either to replace the vehicle in question with a new one of same Make, within a period of one month, from the date of receipt of copy of this order, or to refund its total price of ₹6,15,200/- (₹5,95,000/- its price plus ₹20,220/- its VAT), with interest @ 9% per annum, from the date of its purchase i.e. 31.12.2011, till payment. Complainant is also hereby awarded compensation of ₹50,000/- for his harassment, mental tension agony etc. and litigation expenses of ₹11,000/-, against the opposite parties, jointly and severally. However, since primarily liability is of opposite party no. 2, so in case, compliance of the order is made by opposite party no. 1, then opposite party no. 2, shall duly indemnify opposite party no. 1, with interest @ 9% per annum from the date of compliance of opposite party no. 1, till the date of payment to him by opposite party no. 2."
6. Aggrieved, both the Manufacturer and the Dealer preferred First Appeal No. 23 of 2015 and First Appeal No. 90 of 2015 respectively. The State Commission vide its common impugned order allowed both the Appeals and set aside the order of the District Forum while dismissing the Complaint after observing thus:-
"11. From the perusal of job cards it cannot be presumed that the car was having manufacturing defect. As per C-12 car was brought for general check-up and complainant told that heater was not working and the same was adjusted. As per Ex. C-13 the car was brought for first free service and needful was done. As per Ex. C-14, it was brought for second free service and necessary adjustment etc. were done. As per Ex. C-15 it was complained that engine did not start and engine assy. was replaced. Thereafter the car was brought for cracks of glass or less cooling by A.C. etc. which were rectified. There was no major problem. When the complaint was filed on 13.08.2012 the car was working properly. Problem in engine was reported when the car covered 31,566 Kms and the same was replaced. As per Ex. R-13 water body was having cracks. Due to less water engine can heat-up and stop working. Routine adjustment of gear etc. does not amount to manufacturing defect. If any vehicle is taken to check particular problem it does not mean that there was manufacturing defect. To prove manufacturing defect an opinion is to be obtained from the competent person. It is opined by Hon'ble National Commission expressed in Telco Vs. Hardip Singh & Anr. 100 2011 (3 CLT 382, Mahindra and Mahindra Ltd. Vs. Ram Lakhan, 2014 (2) CPJ 760 and Classic Automobiles Vs. Lila Nand Mishra and Anr. 220 2010 (2) COPT, 363 that if any vehicle is taken for repair time and again it does not mean that there is manufacturing defect unless there is report by competent engineer. It is opined therein that in the absence of expert opinion it cannot be presumed that there is manufacturing defect. In the present case also there is no report of competent engineer about manufacturing defect. There is no reason to deviate from the opinion of Hon'ble National Commission expressed in aforesaid case laws as complainant has not produced any type of evidence on the file to show that car was having any manufacturing defect.
12. More so service engineer of appellant gave report Ex. R-31 that there was no problem in the car and if the complainant was not satisfied with that report he could have requested to get the car examined from any other expert. He cannot derive any benefit from the cited case law titled Hind Motor (I) Ltd. & Others Vs. Lakhbir Singh & Others (Supra) because in that case it was clear from the perusal of job cards that the car developed major problems time and again whereas in the present case there were normal problems and five times car was brought for general service and not due to break down.
13. Resultantly impugned order dated 27.11.2014 is set aside. Complaint is dismissed and appeals are allowed."
7. We have heard arguments of Counsel for both the parties and perused the material and evidence on record.
8. Learned Counsel appearing for the Petitioner submitted that the Complainant purchased a Premier Rio Model DX car from the Dealer for an amount of ₹5,95,000/- on 31.12.2011 with a warranty of three years or 50,000 kms whichever is earlier against all manufacturing defects; that during the period from 18.01.2012 till 20.12.2012 the said car was taken to the workshop for about 10 times for repairs/replacement of different parts; that the engine was replaced twice initially on 04.04.2012 and thereafter on 12.10.2012 and that there is no requirement of any further expert opinion as things speak for themselves and a bare perusal of the job cards show that the car was taken to the workshop for non-starting of the engine, low pick-up, weak suspension, low AC cooling with the shifting of the gears and finally complete non-functioning of the engine.
9. Learned Counsel appearing for the Dealer vehemently argued that each time the vehicle had come to their workshop, the job cards were prepared and the vehicle was returned in good running condition; that the Complainant had signed on the job cards that "work has been done to my satisfaction." That the Engineer of the Manufacturer has also inspected the vehicle and made it road-worthy to the satisfaction of the Complainant and yet the Complainant left the car without accepting the delivery despite several requests and communications made. Learned Counsel appearing for the Manufacturer argued that the car has no manufacturing defect and that the State Commission has rightly observed that there was no expert opinion brought forward by the Complainant to prove his case; that the vehicle has been satisfactorily repaired by the Engineer deputed by their Company and drew our attention to the expert report dated 09.03.2013 wherein the Service Engineer has observed that he has made the vehicle in ok and good condition and personally took test drive with Anand Kumar Bansal and he was satisfied that the vehicle was ready in all respects for delivery.
10. The brief point which falls for consideration is whether there was any deficiency on behalf of the Respondents in either selling the car with the manufacturing defect to the Complainant and/or in not rectifying the defects to the satisfaction of the Complainant and if the Complainant is justified in leaving the vehicle behind with the Dealer. For better understanding of the case, the job cards with the respective dates and Complaints and also the repairs carried out is reproduced as hereunder:-
Sr.
Job Card Date
Job Card No.
K.M.
Complaint
Jobs carried out
Repairs/
replaced
1.
18.01.2012
099
1683
General check-up. Heater not working.
Hater Battery Road Gear
Done Adjusted done. Gear adjusted.
2.
09.02.2012
103
5048
All check-up. Heater is not working.
Service done. Mobil oil changed. Diesel filter changed. Oil filter changed.
3.
16.03.2012
123
1120
General check-up, door lock adjusted. AC cooling low, head light low, body noise, CD player not working. Differential noisy.
General check-up done, door lock, AC cooling adjusted, head light adjusted, body noise adjusted. CD player wire adjusted.
4.
04.04.2012
152
13582
Engine not started. Differential noisy.
Replaced the engine.
Differential assembly replaced.
5.
26.05.2012
180
15482
Black smoke, low pick-up, over-heating, break oil leakage.
EGR adjusted. Pickup adjusted. Coolant low. Replaced oil cup Assembly Cracked.
6.
04.07.2012
195
20964
Temperature very high, AC not cooling. Rear door glass cracked. Suspension weak.
Temperature adjusted. AC cooling adjusted. Rear door glass replaced. Upper central break replaced.
7.
16.07.2012
207
Illegi-ble
AC cooling low, blower fan loose. Differential noisy. Tail door adjusted, water tank cracked. AC body noisy. Steering oil low. Horn loose. Gear adjusted.
AC cooling adjusted. Oil refilled. Tail door adjusted. Water tank pasted. M Seal, body nut-bolts tightened. Refill oil. Horn adjusted. Gear adjusted.
8.
11.09.2012
225
29591
Brake low, clutch hard, gear shifting hard, steering noise, L.H.S. door handle cracked. General check-up. Suspension weak.
Brake lining replaced. Front and rear tier clutch adjusted. Gear adjusted. Steering adjusted. Cracked door handle replaced. General check-up done. Suspension checked.
9.
12.10.2012
231
31566
Engine not started.
Engine replaced.
10
20.12.2012
247
-------
Service in brake Brake block jam Repla-ced both break block.
11. In the instant case as the subject car was purchased in the year 2011 and more than 8 years have lapsed the question of sending the car for further expert opinion at this juncture is not justified. Hence, we are of the considered view that the material on record and the job cards needs to be examined, keeping in view the following definition.
12. At this juncture it is relevant to reproduce Section 2(1)(f), which deals with the definition of 'defect', as defined under the Consumer Protection Act, 1986:-
"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;
13. The term 'Manufacturing Defect' as defined by Black's Law Dictionary is ' a deviation from design specifications during production resulting in a product's defect, frailty or shortcoming.
14. From the afore-noted job cards it is evident that the vehicle in question was taken 10 times for repairs to the workshop within a span of less than one year of its purchase. It is not in dispute that the vehicle was purchased on 31.12.2011 and it was taken to the workshop on 18.01.2012, 09.02.2012, 16.03.2012, 04.04.2012, 26.05.2012, 04.07.2012, 16.07.2012, 11.09.2012, 12.10.2012 and 20.12.2012. The submission of the Learned Counsels appearing for the Manufacturer and also for the Dealer, that the vehicle was examined by an expert and that the State Commission was justified in holding that the Complainant did not bring forward any expert opinion, is untenable in the present as it can be seen from the record and from the job cards per se that the engine of the vehicle was replaced twice i.e. on 04.04.212 and thereafter on 12.10.2012 within a period of one year of its purchase. The expert opinion as well the State Commission did not address itself to the admitted fact that the engine was replaced twice. There are no substantial reasons given by the Manufacturer or the Dealer as to the cause for the replacement of the engine twice within the first year of purchase of a new vehicle. Be that as it may, it is seen from the expert opinion that it was signed only by the service engineer of the Manufacturer and is not an independent expert opinion given by a third party. The State Commission has not given any reasons as to why replacement of the engine twice can be construed to be 'a normal problem', as observed by it in paragraph 12 of the impugned order specially when Ex. C-15 depicts that the engine did not start, engine assembly was replaced and more specifically the Dealer had kept the car with him for a period of 30 days.
15. We also find force in the contention of the Complainant that as the vehicle is not delivered to the Complainant, his signatures in the job cards on the endorsement "that work was done to the satisfaction of the Complainant", in the present circumstances of the case, is irrelevant. The fact remains that there was no cogent reason given by the Respondents for change of engine twice within a period of one year apart from other defects. Since 'defect' means any imperfection or shortcoming and 'manufacturing defect' is a shortcoming in a product resulting from departure from its design and is dangerous than the consumer expects the product to be, we are of the considered view that stoppage of engine and replacement of the same twice during the first year squarely falls within the definition of 'defect' and 'manufacturing defect.' For all the afore-noted reasons we hold that the vehicle had a manufacturing defect which is unexplained by the Manufacturer and we do not find negligence on the part of the Complainant in leaving the vehicle behind with the Dealer and not accepting the delivery in such circumstances. As we hold that the vehicle which was sold was having a manufacturing defect, in the light of the circumstances of this case, the Manufacturer i.e. M/s Premier Ltd. alone is directed to take back the vehicle from the Dealer and refund the total price of the vehicle i.e. ₹6,15,220/- less 10% depreciation, as the vehicle was used for a period of one year, (though it was taken to the workshop for 10 times in that period), together with interest @ 9% p.a. from 20.12.2012 till the date of realization, together with costs of ₹10,000/-. Case against the Dealer is dismissed.
16. In the result these Revision Petitions are allowed to the extent indicated above.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER