State Consumer Disputes Redressal Commission
Subash Sharma vs Managing Director on 12 December, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.314 of 2008.
Date of Institution: 08.04.2008.
Date of Decision: 12.12.2012.
Subash Sharma S/o late Sh. Ram Nath, R/o 95, Mann Nagar, Jalandhar.
.....Appellant.
Versus
1. Managing Director M/s Ford India Pvt. Ltd., S.P. Koil, Post Chenoal
Pattu-603204.
2. The Managing Director M/s A B Motors Pvt. Ltd., 658, Industrial Area,
Sherpur Bypass, G.T. Road, Ludhiana.
3. Service Manager M/s A B Motors Pvt. Ltd., opposite Dhanowali
Railway Crossing, G.T. Road, Jalandhar.
...Respondents.
First Appeal against the order dated
17.01.2008 of the District Consumer
Disputes Redressal Forum, Jalandhar.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Baldev Singh Sekhon, Member.
...................................
Present:- Sh. Arun Bakshi, Advocate, counsel for the appellant.
Sh. Anupam Bansal, Advocate, counsel for respondent no.1. Sh. Rahul Sharma, Advocate, proxy for Ms V.A. Talwar, Advocate, counsel for respondents no.2 & 3.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
Sh. Subash Sharma, appellant (In short "the appellant") has filed this appeal against the order dated 17.01.2008 passed by the learned District Consumer Disputes Redressal Forum, Jalandhar (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against First Appeal No.314 of 2008 2 the respondents, pleading that he purchased a car Model Ford Fiesta 1.4 ZXI TDCI Diesel for the sale consideration of Rs.7,21,500/- vide invoice dated 24.03.2006 from respondent no.2, which was delivered by respondent no.3 at Jalandhar. At the time of purchase, respondents no.2 & 3 assured about the good functioning of the car, but exactly after two days, the appellant approached respondent no.3 and made a complaint about mal-functioning of the engine of the above car. Respondent no.3 told the appellant that the vehicle is new and it will take some time in setting and believing this version, the appellant continued using the car, but engine of the car started giving troubles and the appellant made a number of complaints verbally on telephone and also produced the car for physical inspection before respondent no.3, but no satisfactory relief was granted.
3. Since September, 2006, the car in question is lying in the workshop of respondent no.3 for detecting and checking the problem in the engine. The appellant visited respondent no.2 a number of times, but he was put off on one pretext or the other. It was also told that the matter has been taken up with respondent no.1 company and it will take some time to settle the matter and to detect the fault. Lastly, the appellant visited in the last week of October, 2006 and respondent no.3 told the appellant that the engine of the car is defective and is required to be opened, but the appellant refused to give the consent to do so, because if the engine of the diesel car is opened at initial stage, then the face value of the car shall be decreased. A legal notice dated 07.11.2005 was also served upon the respondents, but the same was not responded.
4. It was prayed that the respondents be directed to refund Rs.7,21,500/- along with interest @ 18% p.a. and to pay compensation for not using the car @ Rs.4,000/- per day from October, 2006 till date and pay Rs.50,000/- as compensation for harassment and mental tension along with Rs.25,000/- as litigation costs.
First Appeal No.314 of 2008 3
5. In the written reply filed on behalf of respondent no.1, preliminary objections were taken that the complaint is not maintainable in the present form and no cause of action has arisen in favour of the appellant. The present complaint is nothing, but an attempt to malign and tarnish the image of the reputed firm. The vehicle in question of the appellant was taken to the agency of respondent no.3 on 19.09.2006 and was checked by the experts at the authorized service station. After examination, it was noticed that the water had entered the intake manifold. This has caused the water to reach the engine and it mixed up with the fuel in the cylinder and caused mis-timing in firing of the cylinder and this condition is called Hydrostatic Locking. This happens when a vehicle is continuously running in water and not because of any manufacturing defect. The fault was due to mishandling of the vehicle for which the appellant is responsible.
6. At the time of purchase of the vehicle, the customer is provided with Owner's Manual-cum-Warranty Booklet, in which conditions are mentioned and it is a guide to run the vehicle. There were specific instructions and warning regarding the driving conditions and the same has to be followed. The appellant is estopped by his own act and conduct from filing the complaint, by not adhering to the conditions of the manual. In the present case, the loss has been caused due to the vehicle being run through water and is not the result of any defect due to faulty manufacturing or material.
7. On merits, it was admitted that the appellant purchased the said car from respondents no.2 & 3 and the appellant was assured about the good functioning of the car. The service of legal notice was also admitted. Other similar pleas as taken in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
8. In the written reply filed on behalf of respondents no.2 & 3, similar preliminary objections were taken. On merits, it was admitted that the appellant purchased the said car from the answering respondents and he was First Appeal No.314 of 2008 4 assured about the good functioning of the car. It was also admitted that the car is lying at the workshop of the answering respondents for necessary repairs. The appellant does not want to get the car repaired, but he is adamant to get the entire refund of the price of the vehicle. Non-cooperative behavior of the appellant is responsible for the vehicle lying at the workshop of the answering respondents and not being repaired. Service of legal notice was admitted. All other allegations were denied and dismissal of the complaint was prayed.
9. Parties led evidence in support of their respective contentions by way of affidavits and documents.
10. 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 the stand of the respondents is correct and there is no manufacturing defect in the car and damage has been caused due to Hydrostatic Locking due to heavy rain on 19.09.2006, when the water entered into the car and damaged the engine and the appellant has tried to drive the vehicle through the water. As per documents Ex.PW-2/B, accidental repair has been done on 29.07.2006. The appellant is himself to be blamed to be driving the vehicle in excessive rain and water has entered in the engine and caused Hydrostatic Locking and the appellant has failed to prove any manufacturing defect. The appellant also refused to give the consent to open the engine to find the fault, and dismissed the complaint.
11. Aggrieved by the impugned order dated 17.01.2008, the appellant has come up in appeal.
12. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have perused the written arguments filed on behalf of the appellant as well as respondent no.1 and have heard the learned counsel for respondents no.2 & 3.
13. In the written arguments filed on behalf of the appellant, it was submitted that the District Forum has wrongly observed that the surveyor had First Appeal No.314 of 2008 5 driven the car, whereas the perusal of the survey report dated 20.07.2007 does not indicate that the same was driven by the surveyor, but it was only physically and minutely inspected. The District Forum has misread the report. The District Forum has gone wrong, by observing that there was no manufacturing defect in the car and the damage has been caused due to Hydrostatic Locking due to heavy rain on 19.9.2006 and the water entered into the engine. The evidence proves that the trouble started within two days of the purchase of the vehicle on 24.03.2006 and about six months prior to the 29.09.2006, the complaint was made within two days and the services were done within the prescribed time. The car was left in the workshop of respondent no.3 in the last week of October, 2006. Till 18.09.2006, the respondents were not able to diagnose the problem and on 19.09.2006, came out with the present version. The affidavit of Mohinder Pal, driver was ignored. No expert evidence has been led by the respondents. In the case of Hydrostatic Locking, the car will not start but in the present case, the car was running upto the speed of 70 kmph. and thereafter, the engine started knocking and sometimes it misfired. The District Forum has wrongly relied upon the accidental repairs done on 29.07.2006 i.e. document Ex.PW-2/B much before the relevant date of rain on 19.09.2006. The engine problem is not due to the accident. As per the law laid down by the Hon'ble National Commission, the car is liable to be replaced. Reliance has been placed on "Maruti Suzuki India Ltd. Vs Abdulapuram Buchiraju & Ors.", 2008(3) CPC-
137.
14. In the written arguments filed on behalf of respondent no.1, pleadings of the written reply were repeated. It was further submitted that there was no manufacturing defect in the vehicle. No expert evidence has been examined to prove the manufacturing defect. Hydrostatic Locking condition is caused only when water enters the intake manifold, reaching the engine and mixing with fuel of the cylinder, causing mis-firing of the engine and the same is indicative of negligent driving and mishandling of the vehicle. First Appeal No.314 of 2008 6 The appellant caused damage to the engine due to his own negligent driving in the waterlogged conditions and the respondents cannot be held liable. The respondents are also not liable to refund under the terms of warranty, as the appellant himself has violated the same. The report of Arun Kumar & Co., Surveyor and Loss Assessor cannot be relied upon, as it is without any basis and he was not an expert in any manner and it was at the instance of the appellant. The Hydrostatic Locking problem was reported to respondent no.2 on 19.09.2006, whereas the vehicle was allegedly inspected by Arun Kumar & Co. surveyor on 20.07.2007 and after a lapse of 10 months, it would not be possible to find any marks of water in the air filter, as the water evaporates. The surveyor had not dismantled the engine to conclude that the vehicle suffers from defect or from Hydrostatic Locking and the report cannot be believed. The appellant has miserably failed to prove his case and the complaint has been rightly dismissed. The appeal is also barred by limitation. Reliance has been placed on the following authorities:-
i) 'Swaraj Mazda Ltd. Vs P.K. Chakkappore & Anr.', II(2005) CPJ-
72(NC).
ii) 'State of Himachal Pradesh Vs Jai Lal & Ors.', AIR-1999 SC-3318.
iii) 'Sikha Nayak Vs Dr. Manabesh Pramanick', I(2006) CPJ-95 (NC).
15. We have considered the respective submissions of the parties and have thoroughly scanned the entire documents and other material placed on the record.
16. The version of the appellant that he purchased the car in question on 24.03.2006 from respondent no.2 and after 2-3 days, the engine of the car started mal-functioning and he brought the same to the notice of respondent no.3 and also produced the car for inspection, but nothing was done. The car in question is lying with respondent no.3 since September, 2006.
17. Respondent no.1 has taken a specific plea that the water entered in the intake manifold and caused Hydrostatic Locking. This occurs First Appeal No.314 of 2008 7 when the vehicle is continuously run in the water and not because of any other defect. The appellant relied upon the repair card Ex.C-4 which is dated 19.09.2006 and as per that, the vehicle was noisy due to Hydrostatic Locking. This repair card Ex.C-4 is of Bhagat Ford. To prove that Hydrostatic Locking was due to continuously running of the vehicle in water, no expert has been examined by the respondents. Their main reliance is only on the terms and conditions of the Manual and as per the respondents, the appellant has not followed the instructions contained in the Manual. The appellant sent e-mails to the respondents, including the legal notice, but nothing was done. The respondents filed the affidavit of S.M.S. Devadoss, Senior Legal Affairs Officer Ex.OP/A, who repeated the pleadings and the conditions provided in the Manual. Ex.OP/B is the affidavit of Ashish Gupta, General Manager, Bhagat Ford, but his affidavit is nothing, but the repetition of the reply and again reliance is on the Manual. The driver of the appellant also filed his own affidavit in support of the case of the appellant as Ex.PW2 and the vehicle history is Ex.PW-2/A to Ex.PW-2/D.
18. Once it was brought to the notice of the respondents that the engine is making noise and the car is not functioning properly, it was for the respondents, who are dealing with the vehicles of one of the reputed companies of the international standard, to have rectified the defect, but that was not done. The car was purchased on 24.03.2006 and since September, 2006, it is lying parked in the workshop of respondent no.3.
19. The respondents have not examined any expert and the report of Arun Kumar & Co., Surveyor and Loss Assessor cannot be taken to be expert report, because some automobile engineer should have been examined, to know the real cause of the Hydrostatic Locking and merely mentioning that it occurred due to running of the vehicle continuously in the water is not sufficient. The appellant, as per the address given, is the resident of Jalandhar and in this part of the country, there are no floods every time and vehicles do not move through water continuously. Of course, during First Appeal No.314 of 2008 8 the rainy season which lasts about two months maximum, the vehicles are plied through the rain or the rainy water accumulates, but that is not sufficient to prove the problem of Hydrostatic Locking. The appellant purchased the vehicle in question on 24.03.2006 and within a few days, he brought the said vehicle to the workshop of respondent no.3 and he sent e-mails Ex.C-1 to Ex.C-3 and ultimately on 19.09.2006, the repair order Ex.C-4 was prepared wherein it was mentioned that during checking, it was noticed that the vehicle is noisy due to Hydrostatic Locking. As per the appellant, the vehicle is lying parked in the workshop of respondent no.3 since September, 2006 and it has neither been repaired, nor made roadworthy. No other document to rebut Ex.C-4 has been brought on record by the respondents to prove that the said defect was rectified by the respondents or not.
20. From the above discussion, it is clear that the vehicle is having defect in the engine. The version of the respondents that the guidelines of the Manual were not followed by the appellant is not believable, nor any such evidence has been brought on record to prove as to which guideline was not followed, or which was violated. Hon'ble Supreme Court in case "Hindustan Motors Ltd. & Another Vs N. Siva Kumar and another", 2001 (2) Consumer Protection Cases-334, observed that only the manufacturer is liable and not the dealer.
21. The authority i.e. Swaraj Mazda Ltd. Vs P.K. Chakkappore & Anr (supra) relied upon by respondent no.1 rather supports the case of the appellant, because in that case the Swaraj Mazda Ltd., appellant was directed to get the vehicle inspected from a qualified expert to know the defect and to remove the same and replace the chassis of the vehicle. In the present case, as stated above, no expert was examined by the respondents to prove that the problem of Hydrostatic Locking was due to the water entered in the engine. The other two cited authorities i.e. State of Himachal Pradesh Vs Jai Lal & Ors. (supra) and Sikha 'Nayak Vs Dr. Manabesh Pramanick (supra) are not applicable to the facts and circumstances of the presen[t case. First Appeal No.314 of 2008 9
22. Accordingly, respondent no.1 is liable to replace the engine of the vehicle in question and ensure its roadworthiness. The appellant has suffered a lot of mental pain, agony and harassment and he has been deprived the use of the vehicle for the last about three years, for the deficiency in service on the part of the respondents, because respondents no.2 & 3 were responsible for not asking respondent no.1 to replace the engine or to make it roadworthy and the vehicle, for the last three years, is lying in the workshop of respondent no.3. All the respondents were informed by the appellant about the defect in the vehicle, but they did not bother. For these lapses, deficiencies and negligence, all the respondents are liable to pay compensation to the appellant. The order of the District Forum is based on conjectures and surmises and is liable to be set aside.
23. In view of above discussion, the appeal is accepted and the impugned order under appeal dated 17.01.2008 passed by the District Forum is set aside. Consequently, the complaint filed by the appellant/complainant is allowed and respondent no.1 is directed to replace the defective engine with a new one free of costs and to ensure the roadworthiness of the vehicle in question. All the respondents are also liable to pay the compensation to the appellant to the tune of Rs.2,00,000/- (Rupees Two Lacs) along with interest @ 7.5% per annum from 19.09.2006 till realization and Rs.20,000/- (Rupees Twenty Thousand) as litigation expenses, jointly and severally.
24. Compliance of the order shall be made by the respondents within 45 days of the receipt of copy of the order.
25. The arguments in this appeal were heard on 04.12.2012 and the order was reserved. Now the order be communicated to the parties.
26. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member December 12, 2012.
(Gurmeet S) First Appeal No.314 of 2008 10