State Consumer Disputes Redressal Commission
Dr. M.M. Mittal, vs Deep (India) Enterprises Pvt Ltd on 21 November, 2008
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986 ) Date of Decision: 21-11-2008 (1) Appeal No. FA-2007/444 (Arising from the order dated 30-04-2007 passed by the District Forum-III, Janakpuri, New Delhi in complaint case No. 221/2004) Dr. M.M. Mittal, -Appellant Anubhav In person. B-2/4, Model town, Delhi-110009. Versus 1. M/s Deep ( India) Enterprises Pvt Ltd, -Respondent No.1 13, Bhera Enclave, Paschim Vihar, Through New Delhi-27. Mr. Deepak Kohli, Advocate. 2. M/s Hyundai Motors India Ltd., -Respondent No.2 A-30, Mohan Co-op. Ind. Estate, Through Mathura road, Ms. Amita Rajora, New Delhi-110044. Advocate. 3. M/s Standard Chartered Bank, -Respondent No.3 Indian Express Building, 3rd Floor, through Bahadur Shah Zafar Marg, Mr. Kanishk Ahuja, New Delhi-110002. Advocate. (2)Appeal No. FA-2007/844 (Arising from the order dated 30-04-2007 passed by the District Forum-III, Janakpuri, New Delhi in complaint case No. 221/2004) M/s Hyundai Motors India Ltd., -Appellant A-30, Mohan Co-op. Ind. Estate, Through Mathura road, Ms. Amita Rajora, New Delhi-110044. Advocate. Versus (1) Dr. M.M. Mittal, -Respondent No.1 Anubhav In person. B-2/4, Model town, Delhi-110009. 1. M/s Deep ( India) Enterprises Pvt Ltd, -Respondent No.2 13, Bhera Enclave, Paschim Vihar, Through New Delhi-27. Mr. Deepak Kohli, Advocate. 3. M/s Standard Chartered Bank, -Respondent No.3 Indian Express Building, 3rd Floor, through Bahadur Shah Zafar Marg, Mr. Kanishk Ahuja, New Delhi-110002. Advocate. CORAM: Mr. Justice J.D.Kapoor President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Aforesaid two appeals arise from the order dated 30th April 2007 passed by the District Forum whereby the appellant-Hyundai Motors India Ltd., who are the manufacturers and were arraigned as OP No.2 before the District Forum have been directed to pay compensation of Rs. 50,000/- for having sold a defective vehicle and for not removing the defect of abnormal noise from the engine.
2. M/s Hyundai Motors were aggrieved of the order itself whereas the appellant Dr. M.M. Mittal, who was the complainant is aggrieved of the amount of compensation.
3. For the sake of convenience we will refer appellant Dr. M.M. Mittal as complainant and the appellant Hyundai Motors as respondent No.2.
4. As culled out from the order of the District Forum, the facts, in brief, are that the complainant purchased Hyundai Accent GVS car bearing Regn. No. DL-8C-J5476 on 25-08-2003 from respondent No.1. This car had been manufactured by respondent No.2 and part of the price of the same was paid by the complainant by taking finances from respondent No.3. From the very next day complainant had reported to respondents and at some stage to respondent No.3 also that while driving the car complainant noticed an abnormal sound in the car in addition to the normal sound of the engine. Several times the car was inspected at the workshop of respondents, even joint inspection of the car for detecting this abnormal noise coming from the engine was done besides joint meeting of the complainant with the senior officials of respondents, but with no results. Whiel according to the complainant the abnormal sound was coming while running the car. Respondents kept on reiterating that there was no abnormal noise coming from the engine while driving the car as alleged. Even denial of complainants allegation was communicated to the complainant in writing. Complainant ultimately had to file the instant complaint in March 2004.
5. Respondents No. 1 and 3 did not appear despite service and so had to be proceeded ex-parte. Reply was only filed on behalf respondent No. 2-M/s Hyundai Motors India Ltd., the manufacturers. Complainant filed rejoinder to the reply and thereafter during proceedings under the orders of District Forum the car was mechanically inspected at Indian Institute of Technology, Hauz Khas, Delhi. The objections to the report were filed by respondent NO.2 and Dr. R.R. Gaur filed reply to the interrogatories filed by respondent No.2. Parties also filed their affidavits in support of their rival contentions.
6. During the course of arguments before the District Forum the OPs did not deny that from the next day onwards till the complainant filed this complaint before the Forum letters were being sent to respondents complaining about the abnormal sound coming and that the grievance of the complainant could not be sorted out for the reason that according to respondents no abnormal sound was coming from the car while being driven. OPs raised a number of objections about the maintainability of the complaint as well as the version of the complainant that from the engine of the car during operation abnormal sound was coming and from the competent persons, that they deal with the dealer on principal to principal basis and that after sale of the car, there was no responsibility of respondent No.2 as the warranty does not apply to slight irregularities that are not recognized as affecting the quality or function of the vehicle or parts such as slight noise or vibration or items considered as characteristic of the vehicle.
Complainant took delivery of the car in perfect condition and that the concerned dealer is solely responsible for any error, omission or misrepresentation at the time of retain sale/service since the same is interlinked between the concerned dealer and customer and respondent No.2 does not have any responsibility whatsoever.
7. For the reasons given above the District Forum appointed Dr. R.R. Gaur, Professor in the Department of Indian Institute of Technology for inspection of the vehicle.
His report is as under:-
Prof. R.R. Gaur, along with Prof. J.P. Subrahmanyam (another expert) carried out the investigation in the presence of Dr. Mittal. The car was visually inspected under idling and driving conditions at different speeds and different terrains. On the basis of this investigation it was confirmed that there exists an abnormal humming sound over and above the normal engine noise, particularly noticeable at the speed range of 1000-2500 r.p.m. as reiterated by the complainant repeatedly. This defect in performance of the car stands verified.
8. The complainant sought certain clarification from Prof. R.R. Gaur who in definite terms replied as under:-
It does indicate an abnormality (sound from engine), a possible defect in transmission system. Such a thing is not normally present in the cars.
9. The complainant has assailed the observation of the District Forum that the report of expert nowhere indicated that the abnormal sound results in the operation of the vehicle in any way and Also that respondents had provided prompt and efficient service to the complainant at all the times during warranty period as was evident by various correspondence exchanged between the complainant and respondent No.2 and therefore respondents cannot be held guilty for deficiency in service though the OP could not succeed in rectifying the abnormal sound coming from the engine in addition to the usual sound of engine. OPs have been insisting that the alleged abnormal sound coming from the engine while driving the car was not in any way effecting the quality or efficiency of the vehicle or parts thereof as the car was purchased in the year 2003 and is still in possession of the complainant and is being used by him without resulting into any abnormal defect in the car.
10. It was because of the stand of the respondent No.2 that District Forum observed that any direction to respondent No.2 to ensure the removal of the abnormal noise form the engine is not going to bring any results for the simple reason that respondent No.2 despite evidence on record were not prepared to accept that any such abnormal noise is coming from the engine of the car during operation.
11. We have perused report of Dr. R.R. Gaur. He has categorically observed and confirmed that there exists an abnormal humming sound over and above the normal engine noise, particularly noticeable at the speed range of 1000-2500 r.p.m. and it does indicate an abnormality of possible defect in transmission system and such a thing is not normally present in the cars.
12. It was in order to inculcate high standard of quality of goods and service provided by the traders and service providers that the Legislator brought the Consumer Protection Act 1986 on the Statue Book by providing stern standards of quality, standard, purity and potency of the goods by defining the word defect as under:-
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. In the instant case opinion of expert was obtained in order to ensure whether the abnormal sound coming from the engine was defect of such kind that brought the quality of the goods within the definition of defective goods. There is categorical finding that abnormal sound coming from the engine is a possible defect in transmission system and such a thing is not normally present in the cars.
14. Merely because a person has been using the car for year does not mean that the vehicle does not suffer from any abnormality in the sound system of the engine and, therefore, is free from defect. One has to drive the vehicle, may be grudgingly or reluctantly and in compelling circumstances if grievances of the consumer are not redressed effectively and this is not a circumstance for absolving the manufacturer from the liability arising under section 14 of the Consumer Protection Act. Section 14 (1) of the Consumer Protection 1986 calls upon the District Forum or for that purpose the State Commission or the National Commission to order the OP to do one or more of the following things if having satisfied itself that the goods complained against suffer from any of the defects specified in the complaint:-
(a) To remove the defect pointed out by the appropriate laboratory from the goods in question.
(b) To replace the goods with new goods of similar description which shall be free from any defect.
(c ) To return to the complainant the price or as the case may be, the charges paid by the complainant.
(d) To pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.
Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit.
15. Whenever any consumer purchases a brand new vehicle or goods at considerably high price and does not choose to have a second or third hand vehicle the minimum expectation of a consumer is that he would not face inconvenience or physical discomfort or other kind of financial loss etc. for getting the defects removed every second or third day. Otherwise the very intention of a consumer to go for a very costly brand new vehicle should suffer such a blow that he would not only looses in terms of finance or money by expenses of transport or on the traveling but also suffers immense mental agony, harassment, emotional suffering, physical discomfort and would deem himself as subject of injustice and, therefore, he has to be adequately compensated if the District Forum exercises its discretion to compensate the consumer in terms of clause (d) of sub-section (1) of Section 14 and not giving direction to remove the defect pointed out by the appropriate laboratory or replace the vehicle with similar description or return the complainant the price.
16. The word compensation appearing in the aforesaid provision has been provided a very wide connotation by the Supreme Court in case after case and recently in Ghaziabad Development Authority Vs Balbir Singh-(2004) 5 Supreme Court Cases 65 by bringing in its fold each and every element of sufferings suffered by the consumer namely mental agony, harassment, emotional suffering, physical discomfort, expected or actual loss or any other kind of sufferings arising out of conduct of the service provider or seller by selling defective goods.
The observations of the Supreme Court are as under:-
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
17. It is misconceived notion that unless and until goods or the vehicle suffer from any manufacturing defect, though the onus is always upon on the manufacturer to prove that it does not suffer from any manufacturing defect, the goods or the vehicle cannot be declared as defective. The quality, standard, purity and potency of every goods has to be tested on the anvil of word defect as provide by section 2(1)(g) of the Consumer Protection Act, 1986. According to this provision any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained 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, amounts to defect.
18. The concept of warranty is that a consumer may be charged for the repairs of any defect by the dealer if these are repaired after the expiry of warranty. But in no way the warranty period can convert a defective vehicle into a perfect vehicle.
If the defect continues after the warranty period which had erupted before the warranty period the inference could be drawn that it is suffering from inherent manufacturing defect and the vehicle has to be declared as a defective vehicle.
19. We have also taken a view that as to the disputes between the consumer and service providers and traders endeavour should be made to settle the dispute once for all and if such orders are passed like replacement of defective goods by new goods free from defect or removal of the defects then the possibility of new goods also not being defective or the removal of defects will not be upto the satisfaction of the consumer cannot be ruled out and such orders give rise to another bout of litigation between the parties.
20. In view of the defect being of manufacturing that it is not removable we allow the appeal of the complainant in the following terms:-
(i) Respondent No.2 shall refund the cost of the vehicle on return of the vehicle by the complainant within one month. We are not passing any order for depreciated value as such a value shall be deemed as compensation for mental agony and harassment suffered by the complainant.
(ii) Appeal of respondent No.2 is dismissed.
21. Payment shall be made within one month from the date of receipt of this order.
22. Both the appeals are disposed of in aforesaid terms.
23. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
24. Announced on 21st November, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) jj Member