State Consumer Disputes Redressal Commission
Amarjeet Kaur vs Atul Auto Limited, on 25 January, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No. 988 of 2009
Date of institution : 13.7.2009
Date of Decision : 25.1.2011
Amarjeet Kaur w/o S. Mahinder Singh, resident of H. No. 147, Hira Bagh,
Rajpura Road, Patiala
....Appellant.
Versus
1. Atul Auto Limited, 8-B, National Highway, Near Microwave Tower,
Shapar Verabal, District Rajkot, Gujarat trough its Manager.
2. Manglam Autos, Adj. Kartar Singh Oil Co. Rajpura Road, Patiala
through its Partner.
3. HDFC Bank Limited, Leela Bhawan, Patiala through its Branch
Manager
4. Khushbu Auto Finance Limited, Jimmy Tower, Opposite Swami Naryan
Gurukul Gondal Road, Rajkot (Gujarat).
...Respondents.
First Appeal against the order dated 25.11.2008 of
the District Consumer Disputes Redressal Forum,
Patiala.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellant : Sh. A.K. Gupta, Advocate
For respondents No. 1-2 : Sh. R.S. Modi, Advocate for
Sh. Mohd. Yusuf, Advocate
For respondent No.3 : Sh. Sandeep Suri, Advocate
For respondent No.4 : None.
INDERJIT KAUSHIK, PRESIDING MEMBER:
Appellant/complainant(hereinafter called 'the appellant') has filed this appeal against the order dated 25.11.2008 passed by the learned District Consumer Disputes Redressal Forum, Patiala(in short "the District Forum").
2. Facts in brief are that the appellant filed the complaint under Section 11 & 14 of the Consumer Protection Act(hereinafter called the First Appeal No. 988 of 2009 2 'Act') pleading that her husband was auto rickshaw driver and use to earn his livelihood as well as of the family. Appellant purchased one auto rickshaw on 19.7.2006 for a sum of Rs. 1,10,000/- from respondent No. 1 and got if financed from respondent No. 4. The said vehicle was bearing registration No. PB-11-AD-9271, chassis No. AF06G9021100. This auto rickshaw was on hire purchase agreement with respondent No. 3-HDFC Bank.
3. After two months of the purchasing of the said auto rickshaw it developed defect and it was shown to the above company from it was purchased and the respondent checked the vehicle and told that the engine has ceased. Official of respondent No. 2 asked the appellant to leave the vehicle and they will replace new engine after getting it from Gujarat and took Rs. 1,522/- and after 12 days after replacing the engine the vehicle was returned.
4. After a month again the engine developed the same defects and when the appellant went to respondent No. 2, respondent No. 2 told that the engine has again developed defect and they have another engine which will be replaced and come after 20 days and take the vehicle. After two days, appellant brought back the vehicle in which some old engine was fitted.
5. The said auto rickshaw for four months remained serviceable but thereafter again developed some defect and the clutch plates use to get defective soon. Appellant went to respondent No. 2 but the vehicle was not repaired properly and ultimately respondent No. 2 abused the appellant and harassment and told that nothing will be done and insulted.
6. The warranty was for 9 months which was valid upto 19.4.2007 and respondent No. 2 is not changing the engine so that the warranty may expire and prayed that respondent No. 2 be directed to First Appeal No. 988 of 2009 3 replace the old engine with new engine and to pay Rs. 35,000/- as compensation.
7. In the reply filed on behalf of respondent No. 2(O.P. No. 1 before the 'District Forum'), it was admitted that auto rickshaw was purchased by the appellant on 19.7.2006 for Rs. 1,10,000/- from the answering respondent, which was financed by respondent No. 4(O.P. No.2 before the District Forum) and was on hire purchase agreement with H.D.F.C. bank. It was further admitted that the engine of the said auto rickshaw developed problem and it was a case of engine seizure.
8. Service schedule has been described by the manufacturer i.e. respondent No. 1 and it is mandatory to get it serviced at regular intervals for good working of the vehicle and to keep it covered under warranty. 1st service was to be carried out within 30 days from the purchase of the vehicle or within 1000 Km. whichever is earlier. 2nd service was to be carried out at 4000 Km. or 60 days, whichever is earlier. 3rd free service was to be carried out at 7000 Km. or 90 days whichever is earlier. 4th free service was to be carried out at 10000 Km. or 120 days whichever is earlier. 5th free service was to be carried out at 13,000 Km. or 150 days whichever is earlier. 6th free service was to be carried out at 16000 Km. or 180 days and further services were to be carried out at regular intervals as per schedule but are paid services. The owner's manual contains free service coupons as well as terms and conditions of warranty. It also contains information about operation, maintenance etc. of the vehicle. At the time of sale of the vehicle an official of respondent No. 2 explained about the service schedule, maintenance, terms and conditions of warranty to the purchaser. It was clearly told to the purchaser that the warranty will become null and void if the service schedule as prescribed is not followed.
9. The vehicle was brought to the workshop of respondent No. 1 on 11.9.2006 when the vehicle had covered 9260 K.M. with the complaint First Appeal No. 988 of 2009 4 that there was high engine oil consumption. It was an engine seizure case. This has occurred as engine oil had not been changed as per schedule and the problem occurred due to the negligence of the appellant herself and not due to any manufacturing defect or any deficiency in service or negligence in service on the part of respondents. The warranty given by the manufacturer became null and void as the service schedule was not followed by the appellant but still as a goodwill gesture the engine was replaced with new one bearing engine No. FCO6H9023749 and the vehicle had delivered on 15.9.2006 i.e. within 5 days instead of 12 days as alleged with full satisfaction of the husband of the appellant and no amount was charged. The vehicle was brought for service on 24.11.2006 when the vehicle had covered 14684 K.M. instead of 10000 K.M. as prescribed for 4th service but still no problem was reported.
10. On 6.1.2007 Mohan Singh representative of the appellant brought the vehicle to the workshop of respondent No. 1 with the complaint of high engine oil consumption when the vehicle had covered 21164 K.M. No service of the vehicle was carried out in between as per schedule and the engine failure occurred due to the negligence of the appellant herself as the prescribed schedule of servicing was not followed but still the engine was overhauled free of cost as a goodwill gesture and no amount was charged. One Rakesh Kumar representative of the complainant brought the vehicle to the workshop of respondent on 7.1.2007 for 6th free service when the vehicle had covered 22996 K.M. and no complaints were reported. On 17.2.2007 also some minor repairs were carried out and on 26.3.2007 the appellant herself brought the vehicle for servicing and no complaint was reported. Other allegations were denied and it was prayed that the complaint may be dismissed.
11. In the reply filed by respondent No. 4(O.P. No. 2 before the 'District Forum') it was admitted that the said auto rickshaw was financed First Appeal No. 988 of 2009 5 by the answering respondent and was registered in the name of the appellant and is on hire purchase agreement with H.D.F.C. Bank. The monthly installment of the loan was Rs. 3448/- and the appellant has deposited 8 installments and 28 installments are still due. Other paras related to other respondents and prayed that the complaint may be dismissed.
12. In the reply filed on behalf of respondent No. 3, legal objections were taken that the appellant is not a 'consumer' as he has not purchased anything from respondent No. 3 nor obtained any loan and the District Forum has no jurisdiction, the vehicle in question is commercial one and the complaint is not maintainable, appellant has not come to the District Forum with clean hands and the complaint is bad for mis-joinder of parties. On merits, it was pleaded that respondent No. 4 has obtained the finance from respondent No. 3 and said three wheeler is on hire purchase agreement with H.D.F.C. Bank and respondent No. 4 is channel business partner of H.D.F.C. bank. Respondents No. 3 & 4 advanced the loan being financer and they have every right to recover the same. Respondent No. 4 is a business associate of respondent No. 3. For replacement of engine, respondents No. 3 & 4 have no concern. Three wheeler is under hire purchase agreement and respondent No. 4 have every right to take possession of the same and there is no deficiency in service on the part of respondents No. 3 & 4. All other allegations were denied and it was prayed that the complaint may be dismissed.
13. Learned District Forum after discussing the pleadings of the parties observed that the warranty period was for nine months. Under the warranty the respondents were responsible for the removal of the defects in the working of the vehicle but no defect was reported during the warranty period and there is no deficiency in service on their part and dismissed the complaint.
First Appeal No. 988 of 2009 6
14. Aggrieved by the impugned order dated 25.11.2008 of the District Forum, the appellant has come up in appeal.
15. We have gone through the pleadings of the parties, perused the record of the learned District Forum, heard the learned counsel for the parties and have gone through the written arguments submitted by the appellant as well as respondents No. 1, 2 & 4.
16. In the written arguments filed on behalf of the appellant, it was pleaded that the three wheeler in question was purchased from respondent No. 2 at Patiala vide bill dated 26.6.2006 and after few months of the purchase the problem started occurring in the three wheeler and the same was repaired again and again and the respondent assured that they will change the defective engine with the new one. The job sheets brought on record by the respondents clearly shows that the service was done within the warranty period. The signature of the appellant were forged on all the job sheets as Exs. R-5 to R-11 and the signatures of the appellant do not tally on this. The defect in the engine was reported well within the warranty period and even in the job sheets it was alleged that the engine was replaced on 15.9.2006 which clearly show that the defect was reported well within the warranty period. The District Forum has passed the impugned order under appeal ignoring the fact that the problem occurred in the engine was a manufacturing defect and it was reported well within the period of warranty. The District Forum dismissed the complaint on the ground that the appellant has filed the complaint after the expiry of warranty period which is against the facts and date of cause of action has to be seen which was not at all taken into consideration by the District Forum. The appellant examined a material witness Manjit Singh, who worked it as a mechanic in the Manglam Autos Ltd. and no evidence was led by the respondents to rebut the same and prayed that the appeal be accepted.
First Appeal No. 988 of 2009 7
17. In the written arguments filed on behalf of respondents No. 1 & 2, it was submitted that the impugned order under appeal passed by the District Forum is a well reasoned order and has been passed after considering the evidence on record. According to appellant, the engine of the vehicle developed problem due to manufacturing defect and it was alleged that respondents No. 1 & 2 did not attend to the complaints properly and changed the engine with the old one. Appellant has alleged that he was given warranty of two years and the vehicle was to give average of 45 Km/litre but it gave the average of 28 Km/litre. The answering respondent examined two witnesses and also placed on file documents Ex. R-5 to R-11 and it was proved on record that there was no negligence or deficiency in service on the part of the answering respondent and the appellant himself was negligent in maintaining the vehicle. No evidence was brought on record to prove that an amount of Rs. 1522/- was charged from the appellant as carriage charges. The service of the vehicle was carried out strictly as per the service schedule and no benefit of warranty can be given. Appellant was negligent for not getting the service done at a given time. No problem was reported in the engine after 15.9.2006. The engine of the vehicle was overhauled although engine developed problem due to negligence of the appellant himself and the job cards Ex. R-5 to R-11 prove the same. The mechanic examined by the appellant cannot be said to be expert as he is only 4th class pass and he has not inspected the engine. Gurcharan Singh, Surveyor was examined by the appellant as expert witness but he has not produced any evidence of his education or licence and he admitted that engine could develop problem if the service schedule not followed and the engine oil not changed as per the prescribed schedule. He did not call any mechanic to ascertain defects. Both the expert witnesses of the appellant have not given notice to the respondents and the vehicle was not checked in the First Appeal No. 988 of 2009 8 presence of the respondents. The respondents have tendered the affidavit of Regional Manager Hardeep Singh Sika, who is a graduate in Mechanical Engineering and is in service for the last 16 years. Vivek Jindal, Partner has also tendered his affidavit and there is no deficiency in service and prayed that the complaint be dismissed.
18. In the written arguments filed on behalf of respondents No. 4, it was submitted that impugned order passed by the District Forum is reasoned order and has been passed after considering the evidence. The answering respondent only got the vehicle financed from H.D.F.C. Bank Ltd. and it has no concern with the vehicle or with any defect in the engine of the vehicle and there is no deficiency in service on the part of respondent No. 3. The answering respondent has got the vehicle financed from H.D.F.C. Bank and has every right to recover the installments of loan from the appellant. If there is any dispute within respondents No. 1 & 2 and the appellant, respondent No. 3 has been wrongly impleaded and prayed that the appeal be dismissed.
19. We have considered the written submissions and heard the counsel for the parties.
20. The impugned order under appeal dated 25.11.2008 passed by the District Forum is cryptic, without any logic and no reasons have been given and the complaint filed by the appellant has been dismissed by simply stating that no defect or manufacturing defect was reported in the disputed vehicle during the warranty period and the opposite parties(respondents) were not deficient in service.
21. The District Forum has neither discussed the documents filed by the appellant nor by the respondents. Respondents have led much emphasis in the written submissions, on the documents Ex. R-5 to Ex. R-11. These are the job cards and thereafter the photos of the load carriage and owner's manual have been exhibited as Ex. R-12 and Ex. First Appeal No. 988 of 2009 9 R-13 and affidavit of Sh. Vivek Jindal, Partner, Manglam Auto Ltd., Patiala is Ex. R-14 and of Sh. Gurwinder Singh, Collection Manager, HDFC Bank Ltd. is Ex. 'RX'. As per the pleadings on 11.9.2006 when the vehicle has covered 9260 Km. complaint of high engine oil consumption and engine seizure was reported. Ex. R-6 is the job card concerning this and in this job card there were complaints of "high engine oil consumption and engine seizure case" and engine as well as certain spare parts were changed under the warranty as detailed in this job card. Again on 6.1.2007 when the vehicle had covered 21164 Km. complaint of high engine oil consumption was reported. 6th service was carried out at 22996 Kms. on 17.1.2007 vide Ex. R-9. Again on 17.2.2007 when the vehicle had covered the same average as mentioned above i.e. 22996 Km. complaints of self not working and handle hard were reported. Next service was done on 26.3.2007. As per the owner's manual Ex. R-13 service schedule was as follows:-
1st 2nd 3rd 4th 5th 6th 1. Servicing 1000 5000 10000 15000 20000 25000
6th service was done when the vehicle has covered 22996 Km. and the 1st service was done when the vehicle has covered 1100 Km. and all these services were done within the warranty period and within the schedule and from these documents it was proved that engine of the appellant was replaced. Ex. C-2 is the affidavit of Sh. Gurbachan Singh Surveyor, Loss Assessor and Investigator and Ex. C-3 is the inspection report and as per this inspection report the engine of the vehicle was replaced by another engine. The appellant examined Manjit Singh, Mechanic, who checked the vehicle No. PB-11AD-9271 on 8.6.2007 and gave his report dated 8.6.2007 that he checked the three wheeler and due to the very bad condition of the engine, the vehicle did not start and engine is not in working condition.
First Appeal No. 988 of 2009 10
22. From the above admitted facts, it is clear that 1st time complaints regarding engine seizure and high engine oil consumption were made on 11.9.2006 and engine was replaced and the vehicle was delivered on 15.9.2006. The allegations were that the problem occurred due to the negligence of the appellant as the service schedule was not followed, but it was not so because as per the owner's manual Ex. R-13, the service schedule is given as follows:-
1st 2nd 3rd 4th 5th 6th 1. Servicing 1000 5000 10000 15000 20000 25000 23. As per owner's manual Ex. R-13 relied upon by the
respondent, the service schedule was altogether different than the one pleaded by respondent No. 1 and the facts and figures mentioned in the pleadings are imaginary and do not find place in the owner's manual Ex. R-13.
24. Admittedly the vehicle in question was purchased by the appellant on 19.7.2006 and the vehicle developed engine problem during the warranty period and the respondents tried to rectify it but failed to do so and even as per their own version the engine was changed but it has not given any satisfactory result. The vehicle in question was financed by Khushbu Auto Finance Limited(HDFC Bank Ltd.). Receipts Ex. C-8 to C-14 prove that the appellant has been paying the installments to the said financer but after payment of the 8 installments the remaining 28 installments have not been paid by the appellant as per the statement of Sh. Sanjay Bhatnagar Ex. R-2, who had deposed so and has further stated that the said three wheeler was on hire purchase agreement with H.D.F.C. Bank as the Khushbu Auto Finance Limited is channel business partner of H.D.F.C. Bank.
First Appeal No. 988 of 2009 11
25. In view of the above discussion, it is proved that the respondents No. 1 & 2 were deficient in service. About 4-½ years have passed since the purchase of the vehicle and at this stage ordering to replace engine/ the defective parts will not serve the purpose or meet the ends of justice but the appellant has suffered harassment, mental tension, financial loss at the hands of respondents No. 1 & 2 and respondents No. 1 & 2 are liable to pay the compensation to the appellant. Accordingly, the appeal filed by the appellant is accepted and the order under appeal of the District Forum is set-aside and respondents No. 1 & 2 are directed to pay Rs. 50,000/- as compensation to the appellant jointly and severally and Rs. 5,000/- as cost of the litigation. Since the vehicle in question was on hire purchase agreement with respondent H.D.F.C. Bank Ltd. and was financed by respondent Khushbu Auto Finance Limited, therefore, this amount be given to the said respondents and adjusted toward the payment of the installments of the vehicle in question. Accordingly, the complaint is allowed.
26. The arguments in this appeal were heard on 12.1.2011 and the orders were reserved. Now the order be communicated to the parties.
27. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Inderjit Kaushik)
Presiding Member
January 25, 2011. (Piare Lal Garg)
as Member
First Appeal No. 988 of 2009 12
Respondent No. 2 in his reply has admitted that the vehicle in question was brought to the workshop on 11.9.2006 with the complaint that there was high engine oil consumption and it was an engine seizure case. The vehicle had covered 9260 K.M. when it was for 3rd service. This had occurred as engine oil not changed as per schedule and due to the negligence of the appellant herself, the engine was replaced with a new engine. It was further admitted that even after the change of the engine the vehicle developed major problems due to the negligence of the appellant as the service schedule was not followed. The vehicle was again brought on 24.11.2006 for 4th service when it had covered 14686 K.M. and no problem was reported. On 6.1.2007 the vehicle was again brought for 5th service when it had covered 21164 K.M. and this time also the engine failure occurred due to the appellant herself as the service schedule was not followed but the engine was overhauled without charging any amount. The vehicle in question was brought on 17.1.2007 for 6th service when it had covered 22996 K.M.