State Consumer Disputes Redressal Commission
Mitali Aggarwal vs British Motor Car Co. (1934) Ltd on 3 July, 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: 03-07-2008 Complaint Case No. C-88/2002 Ms. Mitali Aggarwal, . Complainant W/o Shri Shwetank Aggarwal, R/o 5-A, Under Hill Lane, Civil Lines, Delhi. Versus 1. British Motor Car Co. (1934) Ltd. ... Opposite Party No.1 Pratap Bulding, N-Block, Connaught Circus, New Delhi-110001. 2. The Director, . Opposite Party No.2 General Motors India Ltd., 301, G.K. Apartments, Local Shopping complex, Masjid Moth, Greater Kailash, Part II, New Delhi. 3. British Motor Car Co. (1934) Ltd., . Opposite Party No.3 B-Block, Connaught Circus, New Delhi-110001. 4. British Motor Car Co. (1934) Ltd., .. Opposite Party No.4 1112, Udyog Vihar, Gurgaon, Haryana. 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)
1. Alleging deficiency in service and unfair trade practice on account of the sale of a defective Opel Astra Club Car by the Opposite Parties, the complainant has through this complaint sought the following reliefs:-
(a) Pass the award for Rs. 8,55,117/- along with interest @ 24% p.m. since the date of delivery till the date of refund in favour of the complainant and against the OP No.1 to 4.
(b) Pass the order against the OP No.1 to 4 to pay damages of Rs. 1,00,000/- for causing mental tension, harassment etc. along with interest @24% p.m. since 05-02-2001 till the date of payment.
(c) Pass the order against the OP No.1 to 4 to pay Rs. 2,000/- per day for traveling and other expenses since 05-02-2001 totalling about 22,000/- as on date.
(d) Pass the order against the OPs to pay the cost of legal notice Rs. 1,100/- and other legal expenses in favour of the complainant.
2. Case of the complainant, in brief, is that on 05-02-2001 she bought a Opel Astra Club Car from OP No.1 on the assurances that the above said Opel car is free of all mechanical and manufacturing defects and it has been test driven in one of the best test-tracks of the country provided by the OP No.1 and 2 and also tested by the technicians. Besides this, the complainant was also assured by the employees of OP No.3 and 4 that since OP No.1 and 2 had built up a reputation in the last decade for providing good quality cars at reasonable rates, it has created a benchmark and marked values for its vehicles sold under the brand name Opel, so much so, that other multi-national car manufacturers are finding it difficult to compete with Opel in terms of sale of vehicle annually.
3. That right from the very beginning since 12-02-2001 the above said vehicle has not been running properly and despite numerous complaints to the OP No.1, 2 and 3 it has not been rectified. The said vehicle is giving humming sound from the engine and it increases further when air conditioner of the said car is started; there is water leakage from the sunroof, steering is noisy and wobbling/play; giving low average and colour of spoiler has faded.
4. That when on 12-04-2001 and on various other dates when complainant went to OP No.1 and 3 to get the Opel Astra Club Car changed the OPs concerned authorized person represented to the complainant that these are the minor problems and these problems will be over after the first service. The complainant believed the representation and got the first service done at the workshop of OP No.4. But the problems still persist till date and the said vehicle does not run properly.
Details of the complaint numbers along with job cards and mileage are as follows:-
Sl. No. Repair Order No. Date Mileage Customer Complaint Identified cause 1 026902 12-4-01 2618 KM Engine Missing pick-up less with A.C. 2 027550 4-5-01 3459 KM Low average steering 3 029218 10-7-01 5244 KM Color of spoiler fading 4 029570 26-7-01 5917 KM Water leakage from sunroof, steering ray to check at height 5 001282 15-9-01 7479 KM Steering noisy engine sound check on running condition, body noise, first service.6
031310 11-10-01 8435 KM Check noise while running, low average , steering wheel ray adjust, fuel gauge not showing full.
5. That each time the complainant went to make complaint to OPs, their concerned authorized person insisted the complainant to get some vital parts of said vehicle changed but the problem still persists. It appears that the OPs are more interested in completing the first service of the vehicle rather than rectifying the problems.
Since the problems persisted, husband of the complainant wrote so many letters to the OP No. 1 and 2 for rectifying the problems but no avail.
6. That by supplying a defective Opel Astra Club Car the OPs have indulged in deficiency in service and thereafter by insisting that these are minor problems which can be rectified during the first service , all the OPs through their agents have committed unfair trade practice. The complainant sent a legal notice dated 11-02-2002 with the demand to refund the whole amount or replace the vehicle.
7. While denying each and every allegations contained in the complaint the OPs have raised the preliminary objection that the Honble Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and does not fall within the ambit of provision of Consumer Protection Act 1986 and is exclusively triable by a Civil Court as the vehicle was purchased at the address of Faridabad from Gujarat.
8. On merits the OPs took the following pleas:-
(i) That they never assured the complainant in the manner that the OPel car is free from all mechanical and manufacturing defects and it has been test driven in one of the best test-tracks of the country provided by the OP.
(ii) OPs denied that there is humming sound in the car as alleged. The sound of the engine of the complainants car is the same, which is present in all the cars manufactured by the OP No.2. There is no extra sound in the engine of the car and as and when any defect was pointed out by the complainant, the same was always attended to and rectified.
(iii) That there is no extra sound in the engine of the complainants car. The car and its engine are perfect and there is no problem or defect in the same.
(iv) That during the service or repairing of the car in case any parts were and are required to be replaced are always replaced under warranty.
(v) That the OPs are not at all liable to refund any amount towards the cost of car and to pay damages and expenses and costs etc. as claimed by the complainant.
9. In support of her allegations the complainant has produced and proved the following documents:-
(A) Exhibit CW1/2 in the invoice No. OS/00671 issued by OP towards purchase of the vehicle.
(B) Exhibit CW1/4 is repair order No. 012690-2 dated 12-04-2001.
(C) Exhibit CW1/5 is repair order No. 027550 dated 04-05-2001.
(D) Exhibit CW1/6 is repair order No. 029218 dated 10-07-2001.
(E) Exhibit CW1/7 is repair order bearing No. 029570 dated 26-07-2001.
(F) Exhibit CW1/8 is repair order bearing NO. 001282 dated 15-09-2001.
(G) Exhibit CW1/9 is repair order bearing NO. 031310 dated 11-10-2001.
(H) Exhibit CW1/10 is the warranty card.
10. We have heard the Ld. Counsel for the parties and have also perused the documents. Repair Orders/Job Cards referred above, inter alia, project the following defects:-
i) Engine missing, pick-up less with A.C, low average.
ii) Steering wobbling, roof top leaking.
iii) Colour spoiler fading.
iv) Water leakage from sun roof, steering noisy and wobbling at high speed.
v) Fuel gauge not showing full.
11. It is contended by the Ld. Counsel for the complainant that such defects within less than a month of the purchase of a brand new card clearly make out a case of having sold a defective vehicle causing mental agony and harassment.
12. On behalf of the manufacturer, who is O.P. No.2, it is contended that some luxury vehicles, like the impugned one, are thoroughly inspected and examined prior to its purchase before which comprehensive test drives are undertaken and in this case also the vehicle was taken by the complainant after full satisfaction. So far as the job cards and repair cards are concerned, the Ld. Counsel for O.P. No.2 has contended that this totally negates and falsifies the allegations of the vehicle being defective from day one as the vehicle first came to the workshop at an aggregate mileage of 2619 Kms which the complaint of engine missing, lesser pick up with air conditioner on. Again it came on 04-05-2001 at an aggregate mileage of 3459 Kms with the complaints of low average and steering wobbling. The next visit of the vehicle was on 10-07-2001 at an aggregate mileage of 5244 Kms and the complaint was regarding the colour of the spoiler fading and again on 26-07-2001 at an aggregate mileage of 5919 Kms with the complaints of water leakage from sunroof and steering play at high speed. Again on 15-09-2001 the vehicle came for first service when the complaints of noise in the steering, engine and body were pointed out at an aggregate mileage of 7479 Kms. However, the vehicle came again on 11-10-2001 at an aggregate mileage of 8435 Kms and reported complaints were to check noise in the running vehicle, low average, steering wheel play and adjustment of fuel gauge.
13. So far as O.P. No. 1, 3 and 4 are concerned, who are the dealer and repairers to whose garage the vehicle was taken, have not disputed the above referred complaints but their plea is that whatever was possible was done to remove the defects as pointed out and they did their jobs to their utmost capacity and therefore they cannot be held guilty for any deficiency in service on their part.
14. The complainant has also admitted that whenever he took the vehicle to O.P. 1, 3 and 4 they had attended to it and also carried out repairs and made all out efforts to cure the defects but they could not remove the defects which continued throughout as these were manufacturing defects.
15. In this regard the complaint of the complainant sent to the manufacturer, O.P. No.2, to which a reply dated 18-09-2001 shows that these are manufacturing defects.
There is a reference in the complaint that their own engineer to whom the complainant met six or seven times also felt that there is sound in the engine and he personally took a test drive and accepted the problem with the assurance that very soon the defects would be cured but the same could not be solved.
16. It is a misconceived notion that the manufacturer of a vehicle has no liability qua the consumer in respect of the vehicle unless and until it suffers from inherent or manufacturing defects. There is no provision in the Consumer Protection Act that absolves the manufacturer of goods, from the liability to compensate, having sold defective goods. The goods manufactured and sold to a consumer have to be tested on the anvil of the definition of the word defect provided by Sec. 2 (1)(f) of the Act which 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 good.
17. Such a stern definition was provided by the legislature in order to arrest the tendency of the manufacturers to come out with defective goods and exploit the poor consumer. In the instant case a brand new vehicle of semi-luxury type was taken as many as 7-8 times to the garage but inspite of several efforts to remove the defects the defects persisted. Engine the soul and heart of a vehicle and if it causes trouble the vehicle has to be held defective suffering from manufacturing defects. The quality, standard, potency and purity of any goods including a vehicle has to be tested on the anvil of Sec. 2(1)(g) of the Act which means:-
deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
18. Circumstances of several repairs cards referred above as well as the letters written to the manufacturer by the complainant manifestly demonstrates that the vehicle manufactured and sold by O.P. 2 through O.P. 1,3 and 4 was highly defective and suffered from manufacturing defects.
19. Whenever any consumer points out various defects in a brand new vehicle and takes the same to the garage for repairs and if the manufacturer takes the plea that the vehicle does not suffer from any manufacturing defects and the defects persist inspite of all out efforts of the mechanics and engineers and dealers then the onus lies heavily upon the manufacturer to prove that these defects are not manufacturing defects for the purpose of replacement of the vehicle. May be, that a person is entitled for compensation as to the loss suffered by him if the vehicle does not suffer from manufacturing defects but if the vehicle suffers from manufacturing defects he suffers continuously and immensely.
20. Every person purchases a new vehicle only with a view that this vehicle will not give him trouble or inconvenience for few years.
If the vehicle starts giving trouble from day one forcing the consumer to visit the garage and the manufacturer time and again or once or twice in a week and continues for months together, the consumer suffers immensely in terms of physical discomfort, mental agony, harassment and emotional suffering and great injustice is done to him. The very fact that the vehicle was taken on large number of occasions for rectification and repair of several defects and they have been rectified and removed every time and again those defects erupted and the consumer was compelled to take the vehicle time and again to the garage shows that the vehicle sold to the complainant was defective vehicle as defined by Sec. 2(1)(f) of the Act.
21. The endeavour of the Consumer Forum should be not to relegate the parties to a second bout of litigation by ordering replacement of the goods or a vehicle. Though there are as many as four or five options available to the Consumer Forum as prescribed by Sec. 14 (i) of the Act but still the effort should be to pass such an order which should attain finality and put the disputes between the parties at rest once and for all. As per Sec. 14 in such type of cases the Consumer Forum can direct the manufacturer to replace the goods with new goods of similar description which shall be free from any defects or to remove the defects or to return to the complainant the price, or, as the case may be, charges paid by the complainant and 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 O.P; provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit. Thus the best and pragmatic view to be taken in such cases is that the manufacturer or trader should be directed to return the cost of the vehicle or goods.
22. The concept of warranty is only that after the expiry of warranty period the dealer is entitled to charge for the repairs and upto warranty period it is free of charge. But it does not mean that after the warranty period the vehicle will become free of defect. Aggregate mileage shows that from 12-04-2001 to 11-10-2001 only 8445 Kms were covered which shows as to the very less usage of the vehicle.
23. In the given facts and circumstances of the case and nature of defects the vehicle had suffered, we allow the complaint in the following terms:-
i) O.P. No.2 shall refund the cost of the vehicle on receiving it from the complainant with all requisite documents and formalities for transfer of the vehicle in favour of O.P. 2.
ii) O.P. No.2 shall also pay a lump sum compensation of 2.00 Lakhs, for mental agony, harassment, emotional suffering, financial loss and the expenses incurred by the complainant for taking the vehicle time and again to the garage, which shall include the cost of litigation.
24. The aforesaid order shall be complied with within two months from the date of receipt of a copy of this order.
25. Complaint against O.P. No.1, 3 and 4 is dismissed as the allegations of deficiency in service on their part have not been proved.
26. Complaint is disposed of in aforesaid terms.
27. Copy of order as per statutory requirements be forwarded to the parties free of cost and thereafter the file be consigned to record.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member HK