State Consumer Disputes Redressal Commission
Mahindra Renault Private Limited, vs Sh. Maninder Jeet Singh Cheema on 31 May, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1500 of 2009.
Date of Institution: 22.10.2009.
Date of Decision: 31.05.2012.
Mahindra Renault Private Limited, through its duly authorized signatory,
Gateway Building, Apollo Bundar, Mumbai-400039.
.....Appellant.
Versus
1. Sh. Maninder Jeet Singh Cheema, S/o Sh. Jatinder Singh Cheema,
R/o H.N Ho.1009, Sector 70, SAS Nagar, Mohali, Punjab.
2. Goel Motors (Private) Limited, B-55, Phase-6, Industrial Area, opposite
Verka Milk Plant, SAS Nagar, Mohali through its Managing Director.
...Respondents.
First Appeal against the order dated
15.09.2009 of the District Consumer
Disputes Redressal Forum, SAS Nagar
(Mohali).
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:- Sh. Parminder Singh, Advocate, proxy for Sh. Neeraj Sharma, Advocate, counsel for the appellant.
Sh. Maninderjit Singh, respondent no.1 in person.
Sh. Sanjeev Sharma, Advocate, counsel for respondent no.2.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
Mahindra Renault Private Limited, appellant (In short "the appellant") has filed this appeal against the order dated 15.09.2009 passed by the learned District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (in short "the District Forum").
2. Facts in brief are that Sh. Maninder Jeet Singh Cheema, respondent no.1/complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, First Appeal No.1500 of 2009 2 "the Act") against the appellant and respondent no.2, making assertions that the appellant is the manufacturer of Mahindra cars and respondent no.2 is an authorized dealer of the appellant through whom, the Mahindra vehicles are sold in this region. Appellant launched the vehicle 'Mahindra Renault LOGAN' in India and respondent no.1 contacted respondent no.2, intending to purchase the said vehicle.
3. On 28.04.2008, respondent no.1 purchased Mahindra Renault Logan 1.4 GLX bearing engine no.UE38711, chassis no.8ZC18224, colour white from respondent no.2 after paying Rs.4,70,600/- in cash. At the time of purchase of the vehicle in question, four free service coupons were supplied and as per those coupons, first free service was to be done at pre-delivery inspection and the second free service at 2000 kmts. or within two months whichever is earlier. The said vehicle was having the warranty of two years.
4. After a few days of the purchase of the said vehicle, respondent no.1 found that the vehicle was not attaining the proper pick up after required throttle and oil drops were also coming out on the floor of the garage. The matter was reported to respondent no.2, who asked him to bring the vehicle to their service centre and the vehicle was checked and respondent no.1 was assured that there was no leakage of any kind and in future, there will be no trouble, but the vehicle gave the same trouble and respondent no.1 approached respondent no.2 and told him about the oil leakage and then the free service at 1855 kmts. was provided vide job card no.859 dated 02.06.2008. Respondent no.1 was told that there will be no leakage, but about the reason of leakage, no reply was given. Again, same problem of oil leakage was found and every time respondent no.2 used to rectify the same, but it was not reflected in the job card.
5. At the time of next free service on 6558 kmts. on 27.10.2008, the same problem was again reported to the service unit of respondent no.2 and the service was done and again it was assured that there will be no leakage, but the problem was not entered in the job card, as respondent no.2 First Appeal No.1500 of 2009 3 told that it will bring bad name to the company. The problem of oil leakage and suspension persisted and respondent no.1 visited the service unit of respondent no.2 a number of times. On 04.11.2008, 24.11.2008, 29.01.2009 and 04.02.2009 vide job cards no.3181, 3493, 4409 and 4479 respectively, the complaint was made and every time, it was told that it was resolved, but the problem subsisted. Respondent no.2 was unable to solve the problem of oil leakage and other problems like door rattling, vibrations etc. Respondent no.1 sent e-mail dated 29.01.2009 to the customer care of the appellant which was replied, assuring that the problem will be rectified at the earliest, but nothing was done by the appellant and respondent no.2. Being fed up from visiting the workshop of respondent no.2 again and again, respondent no.1 sent a letter dated 07.02.2009 by speed post to respondent no.2 and mentioned 10 complaints/problems in the said letter, but no response was received. Thereafter, General Manager of respondent no.2 refused to repair the vehicle and misbehaved. Respondent no.1 received e-mail to the appellant on 06.04.2009, assuring that the Chandigarh office of the appellant will look into the complaints/problems, but all in vain.
6. Problems in the engine oil, door rattling and noise from engine were persisting and respondent no.1 again approached the service centre of respondent no.2 on 14.04.2009 at 12351 kmts. and the same were rectified vide job card no.182 dated 14.04.2009 and respondent no.1 advised to get the road test conducted on 15.04.2009. The General Manager of respondent no.2 took the vehicle upto Karnal on main G.T. Road on 15.04.2009 for test drive and after the road test, there were traces of oil on the inner side of the cover, but the same were observed as 'old oil traces'.
7. On 16.04.2009 and 17.04.2009, the windscreen glass and sealant kit of the vehicle was changed by respondent no.2 vide job card no.227 dated 16.04.2009 and invoice no.32 dated 17.04.2009 and respondent no.1 was asked to pay Rs.1035/- which he paid through his credit card. Respondent no.1 took the vehicle to the service unit of respondent no.2 First Appeal No.1500 of 2009 4 on 27.04.2009 for its last free service at 13168 kmts. and again the same problems were notified to the service unit and respondent no.1 was asked to pay an amount of Rs.1262/- and he offered his credit car, but the problems were not solved and as usual, respondent no.1 was told that the same have been rectified. Respondent no.1 not satisfied, wrote another letter with copy to appellant dated 27.04.2009. Respondent no.2 apprehending any legal action served an undated letter upon respondent ono.1 and stereotype reply was also received from the customer care of appellant on 04.05.2009 through e-mail. The defect of oil leakage was continuous and the various correspondences in this regard took place between the parties and the intention of respondent no.2 was to pass the time and the appellant and respondent no.2 failed to rectify the defects of oil leakage, door rattling, noise from engine, engine pick up etc. The said defects were pointed out from the very beginning and the same are still persisting and the appellant and respondent no.2 have delivered a defective vehicle.
8. It was prayed that the appellant and respondent no.2 be directed to return the amount of the car or to deliver a new vehicle, to pay Rs.1.00 lac as compensation and Rs.11,000/- as litigation expenses.
9. In the written reply filed on behalf of the appellant, preliminary objections were taken that the complaint is not maintainable in the present form and respondent no.1 has no locus standi or cause of action. The complaint is bad for non-joinder of necessary party. Intricate questions of law and facts are involved and civil court is competent. Respondent no.1 himself is wrongdoer and has concocted the story with malafide intention to defame and humiliate the appellant, by filing the frivolous litigation. The defects alleged in the complaint were rectified in the month of April and thereafter, the respondent no.1 never brought his vehicle to service centre/workshop for any defect. Through this complaint, respondent no.1 is seeking refund of the vehicle after one and half years of its purchase and its use and the complaint deserves to be dismissed. There is no manufacturing defect in the vehicle in First Appeal No.1500 of 2009 5 question and there is no deficiency in service on its part and the complaint has been filed with ulterior motive and is liable to dismissed.
10. On merits, it was admitted that the appellant is manufacturer of the vehicle. Respondent no.2 is a dealer authorized to purchase the vehicles manufactured by the appellant and in turn, sells them to its customers and all the transactions are on 'principal to principal basis'. There is no privity of contact between the appellant and respondent no.1 and the appellant is not liable for the acts, omissions and commissions of respondent no.2 in any manner. Mahindra Ranault is a Private Limited Company and not a public limited company. No repair work can be done without opening of the job card and the bare perusal of job card no.859 dated June 2, 2008 shows that no problem has been reported in the job card. The car in question was free from any defect and the delivery was made to the satisfaction of the customer. When the alleged defect was reported first time on 10th October, 2008, it was found that it was a minor problem and the same was adjusted. On the request of respondent no.1, respondent no.2 ordered the seal to be replaced and on November, 4, 2008, the timing cover seal which was received by respondent no.2 from the appellant was replaced to the satisfaction of the customer. On November 24, 2008, the vehicle came for service again, but the oil leakage was not reported or noticed. On January 29, 2009, the vehicle was brought for the adjustment of the bonnet and after thoroughly checking the vehicle, it was found to be in OK condition, but for the satisfaction of respondent no.1, additional sealant was put on timing cover bolt. On 04.02.2009, on the request of respondent no.1, timing cover bolt was replaced although the part was working in perfect condition. The appellant was not aware of the ill designs of respondent no.1, to drag the appellant and respondent no.2 in the litigation. The appellant has gone out of the way to accommodate respondent no.1, but the false and frivolous allegations are made. The receipt of e-mail was admitted. Respondent no.2 had throughout been a customer friendly and to maintain good relations for the satisfaction of respondent no.1 on First Appeal No.1500 of 2009 6 14.04.2009, the whole timing cover was replaced along with mounting to the complete satisfaction of the customer. Thereafter, respondent no.1 got the vehicle serviced three times and complained once of oil leakage and on inspection, it was found to be OK. Respondent no.1 has concealed true facts and has filed the complaint with malafide intention to get illegal gains. As on 27.04.2009, respondent no.1 had run the vehicle for almost 13500 kmts. and all the defects were removed, but he put pressure on the company. Respondent no.1 wrote a letter to return the vehicle so that his unreasonable demands are accepted. The appellant on 30.05.2009, again requested that if there exist any problem in the vehicle, then respondent no.1 could visit the service center of respondent no.2, but after third free service, respondent no.1 did not visit the workshop which further proves that there exists no problem and respondent no.1 is making false allegations. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
11. In the reply filed on behalf of respondent no.2, similar preliminary objections and other pleas were taken, as taken by the appellant. On merits, it was admitted that Mahindra & Mahindra Renault Pvt. Ltd. vehicles are sold through the answering respondent. Perusal of job card no.859 dated June 2, 2008 would show that no problem as alleged was reported. Whenever the vehicle is brought to the workshop for service or any other problem, then the complaints are recorded in the job cards. No job cards are opened between first free service and second free service and respondent no.1 is trying to mislead and misguide the Forum, by pleading wrong and distorted facts. Similar other pleas were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed.
12. Rejoinder was filed in which averments of the complaint were reiterated and that of the written reply of respondent no.2 were denied. First Appeal No.1500 of 2009 7
13. Parties led evidence in support of their respective contentions by way of affidavits and documents.
14. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that even after 27.04.2009, respondent no.1 has not remained silent and has been requesting the appellant and respondent no.2 to refund the sale price due to non removal of the defect of engine oil leakage. The car suffers from incurable manufacturing defect of engine oil leakage and appellant as the manufacturer of the car and respondent no.2 its dealer are duty bound to replace the car with a new one or to refund the sale price of the car to respondent no.1, and allowed the complaint, directing the appellant and respondent no.2 to replace the car within two months and in case the car is not supplied to respondent no.1 within that period, they should return the sale price of the car to the extent of Rs.4,70,600/- with interest @ 9% p.a. from the date of sale i.e. 28.04.2008 till the date of actual payment. Rs.5,000/- were awarded as litigation expenses.
15. Aggrieved by the impugned order dated 15.09.2009, the appellant has come up in appeal.
16. We have gone through the pleadings of the parties and have perused the record of the learned District Forum. We have also heard the arguments advanced by the learned counsel for the appellant, respondent no.1, who was present in person and counsel for respondent on.2.
17. Admittedly, the vehicle in question was purchased by respondent no.1 from respondent no.2 on 28.04.2008 vide retail invoice Ex.C-
1. Temporary certificate of registration Ex.C-1/1 was issued. First free service was done at 1855 kmts. and when the vehicle had run 9805 kmts., the job card Ex.C-5 was prepared on 05.02.2009 and complaint regarding 'engine oil leakage from timing side' and other defects of door rattling etc. was made. Respondent no.1 through various correspondence, e-mails Ex. C-6 to Ex.C-9 brought the said defects to the notice of respondent no.2 as well as the First Appeal No.1500 of 2009 8 appellant. As per Ex.C-10, when the vehicle had run 12351 kmts., again the customer's request was to check engine oil leakage and to check the noise from the engine side. Again as per job card Ex.C-12 when the vehicle had covered 13168 kmts., similar problem of engine oil leakage and door noise etc. was reported and the same was rectified by respondent no.1 time to time. Appellant also through letters and e-mails assured respondent no.1 that his complaints will be looked into. Respondent no.1 again sent letters and e-mails to appellant and respondent no.2 which are Ex.C-13 to Ex.C-16 on file, pointing out that there is manufacturing defect in his vehicles and repeated repairs have been done. Ex.C-17 is the report of Er. H.C. Gupta, Risk Engineer, Surveyor & Loss Assessor and as per his report, oil leakage from the lower chamber was still continuing. He further submitted that inspite of repair at various stages of mileage covered by the car, the problem of leakage could not be eliminated and concluded that it is an inherent problem and is a manufacturing defect.
18. To rebut the evidence led by respondent no.1, appellant and respondent no.2 placed on record the photographs Ex.R2/1 to Ex.R2/3. Certificate Ex.R-3 of Sanjay Roy, General Manager of appellant. As per this certificate, the long road test was done on the G.T. Road, Karnal and back along with respondent no.1 and the vehicle was checked on the way after every 100 kmts., but no leakage was found. After the road test also, no leakage was found. Ex.R-4 is the job card no.4409 when the vehicle had run 9156 kmts. and complaint was 'engine oil leakage' and other complaints and the same were rectified.
19. From the above evidence and material placed on file, it is clear that respondent no.1 complained of the oil leakage from the engine and for that complaint, the vehicle in question was taken to the workshop of respondent no.2 time and again. As per the appellant and respondent no.2, the said leakage was removed but the fact remains that the problem of oil leakage continued and respondent no.1 has to take the vehicle for removal of First Appeal No.1500 of 2009 9 the said defect time and again. The District Forum has taken it to be manufacturing defect on the grounds that the vehicle was taken time and again to the workshop of respondent no.2 and, as such, ordered respondent no.2 to replace the car and if the new car is not handed over to respondent no.1, then the sale price of the car to the extent of Rs.4,70,600/- along with interest be refunded.
20. Hon'ble Supreme Court in case "Maruti Udyog Limited Vs Susheel Kumar Gabgotra & Anr.", 2006(4) SCC-644 observed that warranty conditions provided only for replacement of defects parts and not of car. In the instant case, the vehicle in question belongs to Mahindra Renault Pvt. Ltd. and respondent no.1 has failed to bring to our notice any condition of the warranty as per which the entire vehicle can be replaced.
21. Hon'ble National Commission in Revision Petition No.2431 of 2006 titled as M/s Fiat India Limited Vs Shri C.N. Ananthram & Ors.", decided on 17.04.2009, directed the dealer and manufacturer to remove the defect, if any, in the vehicle and to make it roadworthy.
22. In a recent decision in "Sushila Automobiles Pvt. Ltd. Vs Dr. Birendra Narain Prasad & Ors.", III(2010) CPJ-130(NC), the Hon'ble National Commission awarded compensation for non-supply of kit despite various visits and going on again and again to the workshop, was not considered as manufacturing defect.
23. Hon'ble Supreme Court in case "C.N. Anantharam Vs M/s Fiat India Limited & Ors.", IV(2010) CPJ-56(SC), upheld the order of the Hon'ble National Commission passed in Revision Petition No.2431 of 2006 (supra).
24. Hon'ble National Commission in its recent judgment in case "Telco Vs Hardip Singh & Ors.", II(2011) CPJ-236(NC), again held that the OP is liable to replace only the defective parts.
25. From the above discussion and the law laid down, it is clear that respondent no.1 has proved that the car in question had the engine oil leakage problem and for that, the said car was taken to the workshop of First Appeal No.1500 of 2009 10 respondent no.2 time and again and he felt inconvenience. As per the settled proposition of law, only the defective parts are to be replaced and not the car itself. In the present case, the engine oil leakage problem was from the engine and the same has not been rectified and, as such, there is defect in the engine itself and the appellant and respondent no.2 are liable to replace the engine of the vehicle in question of respondent no.1, with a new one and to ensure that no such leakage occurs. Respondent no.1 is also required to be compensated for the mental agony, harassment suffered for not enjoying the new car after spending huge amount. The order of the District Forum is not sustainable in the eyes of law and is required to be modified.
26. Accordingly, the appeal filed by the appellant is partly accepted and the impugned order dated 15.09.2009 under appeal passed by the District Forum is modified to the extent that the order of the District Forum, directing the appellant and respondent no.2 to replace the car with a new one and if the car is not supplied to respondent no.1, then to refund the sale price to the extent of Rs.4,70,600/- with interest @ 9% p.a., is set aside. The appellant, the manufacturer is directed to replace the engine of the car in question with a new one and also to pay compensation of Rs.1,00,000/- (Rupees One Lac). The appellant is also directed to pay Rs.10,000/- in addition to Rs.5,000/- awarded as litigation expenses by the District Forum within one month of the receipt of copy of the order.
27. The respondent no.1 has produced copy of order dated 25.11.2010 passed in F.A. No.969 of 2010 filed by respondent no.2-M/s Goel Motors (P) Limited titled as "M/s Goel Motors (P) Limited Vs Maninder Jeet Singh Cheema & Anr.". We have perused the said copy of the order. Perusal of the copy of order dated 25.11.2010 passed in F.A. No.969 of 2010 filed by respondent no.2 shows that it was not decided on merits, but it was dismissed on the point of delay, as the appeal was not filed within the stipulated period.
28. During the pendency of the appeal, respondent no.1 got the impugned order of the District Forum under appeal dated 15.09.2009 First Appeal No.1500 of 2009 11 executed against respondent no.2, as there was no stay in favour of respondent no.2 and has received the sale price of Rs.4,70,600/- and other benefits. Since the order of the District Forum has been modified by partly accepting the appeal, respondent no.1 is not entitled to the reliefs earlier granted by the District Forum under the impugned order. Respondent no.1 is entitled to the reliefs awarded vide this order and he is liable to refund the amounts received from respondent no.2 in excess of the reliefs granted by this Commission vide this order. As such, respondent no.1 is directed to refund Rs.3,55,600/- i.e. Rs.4,70,600/- (received by respondent no.1 from respondent no.2) minus Rs.1,15,000/- (compensation and litigation expenses) to respondent no.2 within one month, failing which respondent no.1 will be liable to pay interest on this amount @ 9% p.a. from the date of this order till payment of the amount to respondent no.2.
29. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal and another sum of Rs.1,00,000/- vide receipt dated 10.11.2009 in compliance of the order dated November 3, 2009 passed by this Commission. The registry is directed to pay Rs.1,15,000/- out of these amounts to respondent no.2 and remaining amount of Rs.10,000/- with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
30. The arguments in this appeal were heard on 24.05.2012 and the order was reserved. Now the order be communicated to the parties.
31. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member May 31,2012.
(Gurmeet S)