State Consumer Disputes Redressal Commission
Khem Chand vs Fca India Automobiles Private Ltd. on 28 March, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 25 of 2017 Date of Institution : 15.02.2017 Date of Decision : 28.03.2017 Khem Chand son of Late Sh. Bihambhar Dayal, #1659, Old N.A.C., Manimajra, Chandigarh (UT). ....Appellant/Complainant. Versus FCA India Automobiles Private Ltd., Benefice, 2nd Floor, Mathuradas Mill Compound, Lower Prarel (W), Mumbai - 400013, through its Managing Director. M/s Speed Motors, Plot No.815, Industrial Area, Phase-II, Chandigarh (UT), through its Manager/Authorized Signatory. M/s Joshi Auto Zone Pvt. Ltd., Plot No.84-85, Industrial Area, Chandigarh (UT), through its Manager/Authorized Signatory. ....Respondents/Opposite Parties. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
SMT. PADMA PANDEY, MEMBER.
Argued by:
Sh. Ashutosh Gupta, Advocate for the applicant/appellant.
PER DEV RAJ, MEMBER This appeal has been filed against the order dated 09.09.2016, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short 'the Forum'), vide which, consumer complaint bearing No.721 of 2015 filed by the appellant was dismissed.
2. The facts in brief are that the complainant purchased a Fiat Punto car (Registration No.CH-01-AJ-0982), manufactured by Opposite Party No.1, from Opposite Party No.3 on 19.8.2011 by paying a sum of Rs.6,32,646/-. It was further stated that in the year 2013, the complainant faced problem in the car regarding more engine oil consumption and also poor pick up, which was solved by the Opposite Parties at that time. Thereafter, in the year 2015, the car again gave the same problem and also problem in clutch. The complainant approached Opposite Party No.2 on 11.5.2015, 24.6.2015 and 3.7.2015 and thereafter also the complainant visited Opposite Party No.2 many times. Lastly, the complainant sent a legal notice dated 26.9.2015 to the Opposite Parties but to no avail. It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency, in rendering service, and indulgence into unfair trade practice.
3. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed seeking various reliefs.
4. Opposite Party No.1, in its written version, stated that there was no manufacturing defect in the vehicle in question. It was further stated that had there been any manufacturing defect in the vehicle, it would not have functioned a day. It was further stated that the vehicle was purchased by the complainant in the year 2011 and the alleged complaint was filed in the year 2015 after extensively using the car. It was further stated that the complainant had failed to place on record expert opinion establishing any manufacturing defect in the vehicle. It was further stated that the complainant himself remained negligent in getting timely service of the vehicle as per service schedule. It was further stated that the complainant took the vehicle for 3rd service on 12.10.2013 at mileage of 27831 KM and 4th service was got done on 13.02.2015 at mileage of 51149 KM after a gap of 15 months and coverage of 23318 KM. It was further stated that service was required at every 15000 KM or on completion of 12 months whichever was earlier. It was further stated that the complainant was supposed to follow terms and conditions of warranty/extended warranty policy. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
5. Opposite Party No.2, in its written version, stated that the complainant approached for service in October 2013 after the vehicle had run 27826 KMs and refused to get the coolant changed, which was required to be changed during the 3rd service. It was further stated that thereafter, the complainant came for service on 11.5.2015 after running the vehicle 56410 Kms for general check-up only and Opposite Party No.2 did work up-to his satisfaction. It was further stated that on 3.7.2015, after running the vehicle 56782 KMs, the complainant brought the vehicle to Opposite Party No.2 with the problem of poor pick-up. It was further stated that the Service Advisor clearly clarified to him that the pick-up was poor because of improper service and necessary consumable i.e. coolant was not changed as and when required and hence, it required engine overhauling. It was further stated that Opposite Party No.3 was only a service provider and the warranty was given by the manufacturer, which lapsed on 18.8.2013. It was further stated that the complainant bought the extended warranty from Europ Assistance, who rejected the claim. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
6. Opposite Party No.3, in its written version, stated that the vehicle, in question, was sold to the complainant in perfect condition and defect free. It was further stated that the complainant never approached Opposite Party No.3 for any kind of problem in the vehicle after its sale. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
7. The parties led evidence, in support of their case.
8. After hearing the Counsel for the parties and perusing the record, the Forum dismissed the complaint, as stated above.
9. Feeling aggrieved, the complainant has filed the instant appeal.
10. Alongwith the appeal, an application for condonation of delay of 122 days as per the applicant/appellant (as per office report 106 days) in filing the appeal, has been filed.
11. We have heard the Counsel for the applicant/appellant, on the application for condonation of delay in filing the appeal as also in the main appeal, at the preliminary stage, and have gone through the evidence and record of the case, carefully.
12. In the instant appeal, the appellant/complainant has sought setting aside of the order impugned, whereby his complaint was dismissed by the Forum, on the ground that firstly, the extended warranty had not lapsed, which the Forum failed to take into consideration and secondly, the appellant/complainant visited many times to the Opposite Parties/respondents for service and change of defective parts, which was not done. It was further stated that it was astonishing that the car had gone in the workshop for service or for removing the faults about 20 times but all in vain.
13. The Forum after considering the evidence led by both the complainant and the Opposite Parties, in Paras 8 to 10 of its order, held as under:-
"8. We find that the complainant was negligent and irregular in getting the service and came to the OPs only for the third service in the month of October, 2013 after running vehicle 27826 KMs. The vehicle was not got serviced as per manufacturer service schedule. On perusal of Annexure R-1 it is revealed that the coolant was required to be changed during third service. But the complainant himself refused to get it changed. The warranty also lapsed on 18.8.2013. The complainant visited OPs on 3rd July 2015 after running the vehicle for 56,782 Kms, for the problem of poor pick up. As the complainant had taken extended warranty from the Europ Assistance hence the case was taken up by the OPs with the Europ Assistance and they rejected the claim of the complainant vide Annexure R-5. The Contents of Annexure R-5 is as under:-
"Dear Sir, We regret to inform you that your claim for engine O/H is rejected as vehicle is not serviced as per manufacturer service schedule and 45K service coolant not done replacement as prescribed by manufacturer.
Coolant need replacement 24 months or 60000Km, but not found done.
45K service due was on KM45,331 KM but done late on 51,149KM hence claim is rejected"
9. Like a human body, proper continues maintenance of a vehicle or its engine is required to be done. The change of coolant of a motor/auto vehicle at the appropriate time is a must. If the coolant is required to be changed at a particular time/mileage then the coolant will lose its strength resulting heating up of the engine, as the proper coolant help in maintaining the proper temperature of the engine. In case the coolant is not changed after a particular mileage, there would be rise in the temperature of engine, which would result in damaging the inner system components of the engine, and ultimately the performance of the engine will come down. So the OPs cannot be blamed and the fault lies with the complainant himself who is responsible for damaging the engine of the car, which led to deficiency in functioning of the engine.
10. We also find that although complainant bought extended warranty from Europ Assistance but they rejected the claim and the complainant did not make Europ Assistance as a necessary party in the present complaint. In our opinion the complaint is bad for non-joinder of necessary party namely Europ Assistance who rejected the claim of the complainant for engine overhauling on the ground that the vehicle was not serviced as per manufacturer service schedule."
14. On perusal of record, it transpires that after purchase of vehicle in August, 2011, for almost two years, the appellant/complainant did not face any problem. For the first time, in 2013, he (appellant/complainant) reported more engine oil consumption and poor pick up. It is also in evidence that the appellant/complainant was negligent in not getting service as per schedule. The coolant, which was due for change, was also not got changed. These deviations i.e. not getting the service as per schedule and non-change of coolant have a bearing on performance of engine/vehicle. It is a fact that the vehicle had travelled 56410 KMs as on 11.05.2015 and complaint was filed after more than 4 years of purchase of vehicle. Further, no cogent evidence to the effect that there was manufacturing defect in the vehicle, in question, has come on record. As per Section 13(c) of the Act, the appellant/complainant could file an application for sending the vehicle, in question, to an appropriate laboratory/expert, as envisaged under clause (c), to prove his contention regarding manufacturing defect but he did not do so. The appellant/complainant, thus, could not substantiate his complaint with complete expert and cogent documentary evidence. Hence, it cannot be said that the vehicle is suffering from any manufacturing defect. In this context, it is relevant to quote the law laid down by the Hon'ble National Commission in the case of M/s Scooter India Limited Vs. Madhabananda Mohanty & Ors, Revision Petition No.240 of 2002 decided on 7.2.2003, wherein it , inter-alia, held as under: -
" (e) If the defects are insignificant then it would not be case of replacement or refund. A consumer Forum has however to take into consideration the consumer's state of mind as well. After all, he would have invested in a new vehicle to buy peace of mind holding that the vehicle would be trouble free and dependable;
(f) However, while coming to a consumer Forum, the consumer must first give dealer and the manufacturer reasonable opportunity to repair the defect if it is no an inherent manufacturing defect."
The Forum has correctly held qua issue of extended warranty in Paras 8 to 10 of its order that complaint was bad for non-joinder of necessary party.
15. In view of the law as settled above and in view of the foregoing discussion, no case is made out for replacement of the car. Therefore, there is no plausible justification for replacement of the car or refund of its sale price, as prayed for by the appellant/complainant. In our opinion, the Forum rightly dismissed the complaint.
16. No other point was raised by the Counsel for the appellant/complainant.
17. In view of the above discussion, it is held that the order passed by the Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
18. For the reasons recorded above, the appeal, being devoid of merits, stands dismissed, at the preliminary stage, with no order as to costs. The order passed by the Forum is upheld.
19. Since the appeal filed by the appellant/complainant has been dismissed, at the preliminary stage, as such, the application filed by him (appellant/complainant) for condonation of delay, aforesaid, is dismissed, having been rendered infructuous. The application stands disposed of accordingly.
20. Certified copies of the order be sent to the parties free of charge.
21. File be consigned to the Record Room after completion.
Pronounced 28.03.2017.
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT (DEV RAJ) MEMBER (PADMA PANDEY) MEMBER Ad