State Consumer Disputes Redressal Commission
M/S Cargo Motors Pvt. Ltd., vs Love Kumar Sharma on 17 February, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No. 785 of 2009
Date of institution : 8.6.2009
Date of Decision : 17.2.2011
M/s Cargo Motors Pvt. Ltd., Cargo House, G.T. Road, BSF Chowk, Jalandhar
City through its authorized signatory Sh. I.D. Sharma.
....Appellant.
Versus
1. Love Kumar Sharma S/o Maharaj Krishan R/o 416-B, Master Tara
Singh Nagar, Jalandhar.
2. M/s Fiat India Automobile (P) Ltd., Lal Bahadur Shastri Marg, Kurla,
Mumbai-400070 Presently New Holland Fiat India Pvt. Ltd., Level No.
1, Regus Trade Centre, Bandra Kurla Complex, Bandra (E), Mumbai -
400051.
...Respondents.
First Appeal against the order dated 9.4.2009 of
the District Consumer Disputes Redressal Forum,
Jalandhar.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Baldev Singh Sekhon, Member.
Present:-
For the appellant : Sh. Arun Bakshi, Advocate
For respondent No.1 : Sh. P.S. Mann, Advocate
For respondent No.2 : Sh. R.K. Bamal, Advocate
INDERJIT KAUSHIK, PRESIDING MEMBER:
This order will dispose of two appeals i.e. First Appeal No.785 of 2009(M/s Cargo Motors Pvt. Ltd. Vs. Love Kumar Sharma & Anr.) and First Appeal No. 1419 of 2009(Fiat India Automobiles Private Limited Vs. Love Kumar Sharma & Anr.) as the same are preferred against the same impugned order dated 9.4.2009 of the learned District Consumer Disputes Redressal Forum, Jalandhar(in short 'the District Forum'). The appeals are being disposed of with a single order as the grounds in both the appeals are interlinked. The facts are taken from 'First Appeal No. 785 of 2009' filed by M/s Cargo Motors Pvt. Ltd. and the parties would be referred by their status in this appeal.
First Appeal No. 785 of 2009 2
2. Facts in brief are that respondent No.1/complainant-Love Kumar Sharma(hereinafter called 'respondent No.1') filed the complaint pleading that he is Branch Manager of State Bank of India presently posted at Mini Secretariat, Jalandhar Branch of the bank. He purchased a new car Palio Stile bearing chassis No. 178H6E8068402CRZ, engine No. 3846720 through appellant-manufactured by respondent No. 2 for a sum of Rs. 3,40,364/- vide invoice dated 24.3.2008 and raised the loan from State Bank of India.
3. The said vehicle carried a warranty for a period of 18 months issued by respondent No. 2, which was further extended for a period of 18 months on payment of additional amount of Rs. 4,200/- vide receipt dated 24.3.2008. The said vehicle was allotted the registration No. PB08-BE- 0917 and the accessories were got fitted by spending an amount of Rs. 15,000/-. He also paid registration charges and insurance charges for the said car.
4. The said car manufactured by respondent No. 2 was having a manufacturing defect and after about 5 days of the purchase, the coolant started leaking and respondent No. 1 approached the appellant to rectify the defect but the said defect was not cured by appellant till date.
5. On 3.7.2008, respondent No. 1 was coming from Chandigarh to Jalandhar and when he reached near Ropar it started mis-firing and at Ropar engine of the said car suddenly stopped working. Respondent No. 1 informed the appellant about the defect and asked for providing necessary help but the appellant did not provide any help and asked respondent No. 1 to bring the said Car to Nawanshahr for repair. The car was brought to Nawanshahr but the defect was not rectified and it was brought to Jalandhar with great difficulty.
6. On 4.7.2008, respondent No. 1 could not drive the car in question but on 5.7.2008 when he tried to take the said car to the office of the appellant, the car failed to start. It was taken to the workshop of First Appeal No. 785 of 2009 3 appellant No. 1 and the appellant told respondent No. 1 that water has entered in Petrol but after cleaning the fuel tank the car did not start. Appellant then told that there was no defect in the fuel pump and even after replacement of the fuel pump, the car did not start functioning and now the appellant is stating that there is defect in the wiring of the car and entire wiring has to be changed or the engine will be opined to see the defect, if any.
7. Respondent No. 1 told the appellant that there is manufacturing defect in the engine and in case the engine is opened, the value of the car will diminish and they should replace the said car with new one. Respondent No. 1 remained under stress and tension and is entitled to special damages of Rs. 1 lac and the appellant and respondent No. 2 were deficient in service. Respondent No. 1 prayed that appellant and respondent No. 2 may kindly be directed to replace the car in question with the new one or in the alternative pay the full price of the car i.e. Rs. 3,40,364/- and to make payment of Rs. 15,000/- on account of accessories fitted in the said car, Rs. 9749/- on account of insurance charges, Rs. 4200/- on account of amount charges by way of extended warranty and Rs. 7,000/- on account of registration charges. It was further prayed that the appellant and respondent No. 2 may be directed to make the payment of Rs. 1 lac as compensation and to make payment of the interest on the loan amount and Rs. 10,000/- as costs of litigation.
8. In the written statement filed on behalf of the appellant and respondent No. 2, preliminary objections were taken that the complaint is not maintainable as respondent No.1/ complainant is not covered under the definition of 'consumer'. The defect in the vehicle had occurred due to bad driving habits and lack of proper maintenance and not adhering to the instructions as contained in the Service Book. The complaint involves complicated questions of fact and law and the Civil Court is competent to decide the same and the complaint being false and frivolous is liable to be First Appeal No. 785 of 2009 4 dismissed. On merits, it was admitted that the car was purchased from the appellant. It was denied that there is a manufacturing defect. Before the vehicle was sold proper Pre-delivery inspection was done and respondent No. 1 purchased the vehicle after satisfying himself as is evident from the delivery challan. The vehicle was properly looked after whenever brought to the workshop and to maintain the good relations, the whole of the engine was replaced and the vehicle is in perfect running condition. The said vehicle was got inspected by Fiat Service Personal and it was found that the engine got defective due to bad fuel. Respondent No. 1 was informed vide letter dated 26.8.2008, 29.8.2008 and 4.9.2008 and telephone request to take the delivery of the car was also made. Respondent No. 1 is not entitled to any relief. Respondent No. 1 has filed the complaint with ulterior motive to pressurize the appellant and respondent No. 2 to extort money and filed the frivolous litigation and he should be burdened with costs. Other allegations were denied and it was prayed that complaint may be dismissed.
9. Learned District Forum after considering the evidence and material placed on file by the parties and after hearing the learned counsel for the parties, observed that the value of accidental vehicle was depreciated to the extent of Rs. 68,000/- on the total value of the vehicle of Rs. 3,40,364/- and further the estimated cost of the repair of Rs. 53,000/- as assessed by the Cargo Motors, which means that respondent No. 1 is entitled for Rs. 1,58,000/- plus 2/3rd of the insurance premium amount, registration charges and accessories i.e. approximately Rs. 20,000/- and accepted the complaint directed the appellant and respondent No. 2 to refund the amount of Rs. 1,78,000/- alongwith Rs. 5,000/- as litigation cost.
10. Aggrieved by the impugned order dated 9.4.2009, the appellant - Cargo Motor has filed First Appeal No. 785 of 2009 and Fiat India Automobiles Pvt. Ltd. has filed First Appeal No. 1419 of 2009. First Appeal No. 785 of 2009 5
11. We have heard the learned counsel for the parties and have gone through the file and documents placed on record with the assistance of the learned counsel for the parties.
12. Written arguments filed by both the appellants i.e. Cargo Motors and Fiat India Ltd.
13. On behalf of the appellant - M/s Cargo Motors, it was submitted that whole of the engine was replaced and the car is in perfect running condition. The defect was due to bad fuel.
14. During the pendency of the complaint, the car met with an accident and both the parties were directed to produce the damage reports. As per the law only the defective parts can be replaced and not the entire car. In the present case as and when the car was brought, the same was looked into and the complaints were rectified to the satisfaction of respondent No. 1 and no deficiency is proved. No expert evidence has been led to prove the manufacturing defect. The car was running and after 3½ months i.e. on 24.3.2008 the defect was brought to the notice of the appellant which shows that it was not having any manufacturing defect. The report given by R.G. Motors is false. No mechanic has given any mechanical report about the Car. The 2nd expert is nothing but valuation report of the Car. Ex. O-1/5 is the affidavit of the Works Manager, who is an Automobile Engineer having 13 years experience and affidavit Ex. O- 1/6 is of another qualified Automobile Engineer, which has been discarded by the Forum. There is another order of the same date i.e. 9.4.2009 directing the dismissal of the complaint on merits. Appellant is only the seller and not the manufacturer and he cannot be burdened with liability of refunding the price or to pay the costs.
15. On behalf of respondent No. 1, it was submitted that respondent No. 1 purchased the car and took the delivery. The appellant was fully aware of the facts regarding the fault in the car which lead him to supply the major parts i.e. fuel pump, engine and accessories. As per the First Appeal No. 785 of 2009 6 conditions of the warranty the appellant manufacturer was impleaded as a party. The appellant was given sufficient time from July, 2008 to April, 2009 to contest the case but the Company has falsely stated that they were ignorant about the case. The appellant stated that they got the information of the case only on 9.4.2002 from the counsel of the dealer; is contrary to the fact that they supplied the major parts to the dealer for the replacement of the same. The replacement of major parts is self evident to prove that the complaint lodged regarding the manufacturing defect was not false. Even after the necessary changes, the car was brought to the Service Centre to rectify the defects. The purchaser is highly qualified and has experience of 23 years of maintaining cars of different makes and he has spent large amount. There is no gesture of goodwill or else the car should have been replaced. Due to the replacement of the major parts the market value of the vehicle has got down. The car met with minor accident causing replacement of bumper and attached accessories, which has no relevance with the complaint already filed. The order passed by the District Forum is on merits and there is no ground to interfere with the same and the appeal may be dismissed with costs.
16. We have considered the written submissions made on behalf of the counsel for the parties.
17. Admitted facts are that respondent No. 1 purchased the car bearing registration No. PB08-BE-0917 from the appellant vide invoice Ex. C-2 and paid the price of the car vide receipt Ex. C-3. The appellant also spent on accessories, registration and insurance. Vide letter Ex. C-8, respondent No. 1 asked the appellant to replace the car and vide Ex. C-9 the appellant wrote to respondent No. 1 that the car in question is ready for delivery and it should be taken. Ex. C-22 is the report of the Surveyor, as per which the value of the car was assessed as Rs. 2,25,000/-. Ex. C-32 is the job card and the complaint was regarding the engine coolant leakage First Appeal No. 785 of 2009 7 and the same was rectified. Vide Ex. C-33 the car was again sent to the appellant for repair.
18. The appellant examined I.D. Sharma, Senior Manager and produced the job card Exs. O-1/3 for poor pick up and O-1/4 for engine coolant leakage. Rajinder Singh filed his affidavit Ex. O-1/5 deposing that he is qualified Engineer having Diploma in Automobile Engineering and experience of 13 years. The car was repaired to the satisfaction of the customer and the replacement of the engine was done under warranty and the same has not impaired the value and utility of the vehicle. Ashwani Kumar in his affidavit Ex. O-1/6 deposed that he is qualified Engineer having B.Tech Mechanical Degree and has undergone various trainings organized by Fiat India Automobiles (P) Ltd.. The vehicle in question was brought to the appellant on 8.7.2008 with the complaint of poor pick up and the same was rectified and to maintain the relationship even the engine was replaced under the warranty. On 6.12.2008 the coolant leakage was replaced and a satisfactory note was given by respondent No. 1. Ex. O-1/7 is the delivery receipt.
19. Respondent No. 1 has not examined any expert to prove the defects in whole of the car whereas engine of the car has already been replaced by the appellant and it was so admitted by respondent No. 1 himself. As per the law laid down by the Hon'ble Apex Court in case "Maruti Ugyog Ltd. versus Sushil Kumar Gabgotra & Anr.", II (2006) CPJ 3 (SC) the liability of the Maruti Udyog Limited is to repair and replace the defective parts as per the warranty but the compensation was granted. The Hon'ble Supreme Court in the said case "Maruti Ugyog Ltd. versus Sushil Kumar Gabgotra & Anr." (supra) in para 8 observed as follows:-
"8. The obligation under Clause (3) of the Manual reads as under:
"(3) Maruti's Warranty Obligation: If any defect(s) should be found in a Maruti Vehicle within the term stipulated above, Maruti's only obligation is to repair or replace at its sole discretion any part First Appeal No. 785 of 2009 8 shown to be defective with a new part of the equivalent at no cost to the owner for parts or labour, when Maruti acknowledges that such a defect is attributable to faculty material or workmanship at the time of manufacture. The owner is responsible for any repair or replacement which are not covered by this warranty."
20. Thus, as per the warranty conditions, the appellant is liable to replace the defective parts with a new parts without any cost to the owner.
21. The District Forum has passed a strange order because the prayer of respondent No. 1 was to replace the car in question or to pay the full price of the car and to direct the appellant and respondent No. 2 to make payment of accessories, insurance, registration charges etc. alongwith compensation and cost of the litigation whereas the District Forum took into consideration some other facts, which were neither pleaded nor proved and mentioned that the accidental value was depreciated to the extent of Rs. 68,000/- and the cost of repair was Rs. 53,000/- and awarded the same alongwith 2/3rd of the insurance premium amount, registration charges and accessories amounting to Rs. 20,000/- and ordered the appellant and respondent No. 2 to refund the amount of Rs. 1,78,000/- alongwith Rs. 5,000/- as litigation cost.
22. This order passed by the District Forum is based on conjectures and surmises and show the non-application of the mind because this was never claimed by respondent No. 1. In one of the zimni orders, the complaint was dismissed and in another zimni order it was allowed. The order passed by the District Forum is illegal, perverse and cannot be sustained in the eyes of law and as such, the same is liable to be set-aside. Accordingly, the First Appeal No. 785 of 2009 filed by M/s Cargo Motors Pvt. Ltd. and First Appeal No. 1419 of 2009 filed by M/s Fiat India Automobile Private Limited are accepted and the impugned order under appeal dated 9.4.2009 passed by the District Forum is set- First Appeal No. 785 of 2009 9 aside. Consequently, the complaint filed by respondent No. 1 - Love Kumar being without any merit is dismissed. No order as to costs.
23. The arguments in this appeal were heard on 7.2.2011 and the orders were reserved. Now the order be communicated to the parties.
24. The appellants of First Appeal No. 785 of 2009 and First Appeal No. 1419 of 2009 had deposited an amount of Rs. 25,000/- with this Commission at the time of filing of the appeal. These both the amounts of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to the appellants of both the above mentioned appeals by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum.
25. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Inderjit Kaushik)
Presiding Member
February 17, 2011. (B.S. Sekhon)
as Member