State Consumer Disputes Redressal Commission
Samara Ford vs Kjr Developers (P). Ltd. & Anr. on 25 August, 2022
FA/150/2014 SAMARA FORD V. KJR DEVELOPERS & ORS. DOD: 25.08.2022
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 11.02.2014
Date of hearing: 13.07.2022
Date of Decision: 25.08.2022
FIRST APPEAL NO. 150/2014
IN THE MATTER OF
SAMARA FORD
B-35, LAJPAT NAGAR-II,
NEW DELHI -110023 ...APPELLANT
VERSUS
M/S. K.J.R. DEVELOPERS
B-202, ANSAL CHAMBER -1,
BHIKAJI CAMA PLACE,
NEW DELHI -110066.
M/S. FORD INDIA PVT. LTD.
S.P. KOIL POST GAR -II,
NEW DELHI -11, CHENGALPATTU -603204
.... RESPONDENTS
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FA/150/2014 SAMARA FORD V. KJR DEVELOPERS & ORS. DOD: 25.08.2022
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: None for the parties.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case necessary as per the District Forum record are:
"The OP No.1 is an authorized dealer for the sale of Cars, manufactured by OP No.2 (Ford India Pvt. Ltd.), which is engaged in the business of manufacturing and selling of its cars, As per Complainant Co., it had purchased three Ford Fiesta Cars bearing registration No. DL3CAR-0966, DL3CAR0969, DL3CAR0970, on 30.01.2006 for the total consideration of Rs.17,52,954/- (Rs.5,84,318/- per car), inclusive of the registration and insurance charges for the personal use of its three Directors, including the Complainant himself. At the time of booking of the Cars, the sales executive of OP No1 had assured the Complainant that the above said models of the Cars were one of the latest models of OP No.2, with latest technology, high performance and luxuries. While displaying its features, he also assured that these Cars were maintenance free and best in the automobile industry. In the Brochures of the selected model of the Cars, it was mentioned that these models were fitted with four speakers and the Cars were supposed to have high performance and contemporary automotive design that perfectly combined style and solidity with pure technology, ensuring exciting, smooth and economical driving.
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On taking the delivery of the Cars, the Complainant observed that these Cars were fitted but only with two speakers, despite assurance given in the brochures of four speakers. The Complainant immediately pointed out this deficiency of service on the part of OP No. 1 and later informed the Complainant that there had been a typographical error in the Brochure wherein four speakers were mentioned instead of two. However, at the insistence of the Complainant, OP No.1 agreed to provide four speakers in all the three Cars, but despite that OP No. 1 did not fit two more additional speakers in any of the Cars and showed its highly irresponsible conduct.
Besides, the Cars were having the manufacturing defect and Complainant was charged for its repairs, though the vehicles were in its warranty period. After the repair of each vehicle, the Complainant was assured that there would be no problem and all the vehicles would have trouble free running. But despite such assurances given by the OP No.1, the cars had been continuously having various defects viz. hard gear shifting, unbearable 'noises in the front wheels, low mileage, high RPMs, heavy movement of the steering etc. But in the eyes of the OP No1, these defects were normal and same could be automatically adjusted in due course of its driving. The plastic parts and the foot carpets of all the Cars came out within three months of its purchases. The OP No.1 assured to change the plastic parts and foot carpets of all the Cars but it, instead of changing them, painted the same and temporarily pasted the foot carpets also.
Being fed up with the performance of the Cars, the Complainant, vide its letter dated 17.05.2006, expressed its deep regret for the worst performance of the Cars to ALLOWED PAGE 3 OF 12 FA/150/2014 SAMARA FORD V. KJR DEVELOPERS & ORS. DOD: 25.08.2022 OP No.2. But it also sent its E-mail dated 19.05.2006 to the Complainant but only an unsatisfactory reply was given. The Complainant, vide Email dated 21.05.2006 demanded the refund of the value of all the Cars and also requested OPs to take back its Cars.
The Complainant, thereafter, sent several E-mails informing both the OPs about the defects. But every time they assured that their representative would visit to sort out their problems. But when nothing was heard from the side of the OP, on 30.05.2006, then Complainant sent a legal notice through its Advocate for the replacement of the defective vehicles or in the alternative to refund the purchasing amount, within a period of 15 days. But OP No.2, vide its reply dated 12.06.2006, refused to replace the vehicle or to refund the amount, hence the Complainant brought this complaint before this Forum for seeking directions against the OPs to replace all the Cars or to refund its purchase money of Rs.17,52,954/-; to pay a sum of Rs.15,000/-towards the cost of installation of two speakers in each Cars; to pay sum of Rs.1,50,000/- as a compensation towards the harassment, torture, mental agony and inconvenience etc. and to pay a sum of Rs.75,000/- towards the litigation expenses."
2. The District Forum after taking into consideration the material available on record passed the judgment dated 30.08.2013, whereby it held as under:
"On going through the contentions of both the parties, we are of the opinion that the first contention of the OP that when a part or component of any the vehicles could be replaced and defect could be rectified then replacement of the vehicle cannot be ordered, is not tenable. The Complainant sent all the three vehicles for removal of ALLOWED PAGE 4 OF 12 FA/150/2014 SAMARA FORD V. KJR DEVELOPERS & ORS. DOD: 25.08.2022 many problems as pointed out in para No. 10 of this order. Many parts were required to be changed. Front shock absorber of Car No.DL3CAR0969 was changed. Similarly, Clutch Kit of Car No.DL3CAR0970 was replaced even without the consent of the Complainant. Assembly of poor steering was also made. All these parts were changed within one month of the purchase. It is a settled principle of law that the defaulting party cannot be permitted to take benefits of its own wrong. The contention of OP No.1 that since it had ceased to be the dealer of OP No.2 (manufacturer) so its liability cannot be held, is also not tenable. Merely ceasing to be the dealer does not absolve the dealer from its responsibility towards the customer. As the cars, in question, were purchased from OP No.1 and who, on the date of purchase was admittedly authorized dealer of Ford India Ltd. (OP No.2). So, the liability of both the OPs shall be jointly and severally in case of deficiency. The contentions of the OPs that defects pointed out by the Complainant relating to the manufacturing aspect of the cars are also not maintainable. If the cars are repeatedly sent to the mechanic just after its purchase then necessary inference can be drawn that it was having the manufacturing defect. The very fact that the brand new car was having poor mileage, high RPM, heavy steering and harder gear shifting proves beyond reasonable doubt that the cars were suffering from the manufacturing defect. As stated above, front shocker of one of the car was changed, clutch kit was also replaced of the second car and assembly of poor steering was changed in the third Car.
Now coming to the legal objections taken by the OPs against the maintainability of this complaint, it was ALLOWED PAGE 5 OF 12 FA/150/2014 SAMARA FORD V. KJR DEVELOPERS & ORS. DOD: 25.08.2022 contended that the Complainant is not a consumer because these cars were purchased by the Complainant for its commercial use in the name of Company. But it is a settled principle of law that if the cars were purchased for the use of the Directors and were not to be used for any other activity directly connected with commercial purpose of earning profit, could not be said that the Complainant Co. had purchased the car for commercial purposes. Reference in this connection may be had to the law laid down by the Hon'ble National Consumer Dispute Redressal Commission in the matter of [Controls & Switchchgear Company Ltd. Vs. Daimlerchrysler India Ltd.- (IV) ( 2007 CPJ 1 (NC) at page 4] and, so, this contention of the Ld. Counsels for the OPs, is devoid of any force, hence not tenable.
So far as defects as pointed by the Complainant are concerned, we are of the view that if the defects in the vehicle could not be removed, despite various attempts made by the dealer then it would provide a very strong reason to believe that there was a manufacturing defect which could not be removed. If the new brand car gives repeated trouble within few days of its purchase then the consumer would certainly be dissatisfied and such defects would be taken as the manufacturing defects [II (2007) CPJ 310 (NC)]. There is no doubt that in the machinery, the defects may occur but only in one out of the thousand vehicles. It is the duty of the manufacturer to remove the defects or if the defects are not removable then replace the vehicle without further delay.
The Complainant reported various problems in the vehicle like hardness of gear shifting, wheel alignment, left pulling, poor mileage, high RPM, heavy steering etc. and pickup. Floor carpets of the vehicles were also worn ALLOWED PAGE 6 OF 12 FA/150/2014 SAMARA FORD V. KJR DEVELOPERS & ORS. DOD: 25.08.2022 out. All external plastic parts were faded and, therefore, we hold both the OPs as guilty of deficiency of service jointly and severally.
Now coming to the relief to be granted to the Complainant, he has claimed refund of Rs.17,52,954/-, the total cost of all the three cars or the replacement of the cars. The Complainant has also claimed payment of Rs.15,000/- which he had spent for installation of two additional speakers in each car and to pay a compensation of Rs.1,50,000/- towards harassment, torture, mental agony and inconvenience and Rs.75,000/- towards-cost of litigation. Keeping in view the totality of facts and circumstances of this case, we are of the opinion that it is not the case of the Complainant that the Complainant had dropped or left the vehicles when he did not find the vehicles unworthy on road and unsuitable for the purpose these were bought rather the vehicles are still in the possession of the Complainant. It is but natural that the Complainant must be using them, may be with great dissatisfaction or difficulty, so, we cannot direct OPs to replace the vehicles but Complainant is entitled for compensation. So, we direct both the OPs to pay a sum of Rs. 1,50,000/- (Rupees one lakh fifty thousand only) to the Complainant as a compensation, u/s 14(1) (d) of the Consumer Protection Act, 1986 which shall be just, fair and reasonable to compensate for the harassment, torture, mental agony, inconvenience etc. suffered by it on account of deficiency of service committed by the OPs.
OPs shall also pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards the litigation expenses. The compliance of this order shall be made within one month from the date of receipt of its certified copy, failing which they shall also be liable to pay interest to the ALLOWED PAGE 7 OF 12 FA/150/2014 SAMARA FORD V. KJR DEVELOPERS & ORS. DOD: 25.08.2022 Complainant @ 9% per annum on Rs.1,50,000/- from the date of the order till its payment.
3. Aggrieved by the aforesaid judgment of the District Commission, the Appellant namely M/s. Samara Ford has preferred the present appeal, inter-alia, contending that District Commission failed to appreciate that Appellant is only a dealer of Respondent No. 2 and therefore, cannot be made liable for any manufacturing defect in the said cars. The counsel for the Appellant further submitted that the alleged defects in the cars could not have been attributed to the manufacturing faults.
4. The Respondent No. 1, on the other hand, denied all the allegations of the Appellant and submitted that there is no error in the impugned judgment as the entire material available on record was properly scrutinized before passing the said judgment.
5. During the course of arguments, it was informed by the counsel for the Appellant that the vehicles in question, were already sold by the Respondent No.1, which fact has been admitted by Respondent No.1 on 13.09.2019.
6. The Counsel for the Appellant further submitted that the Respondent No.1 ceases to be a consumer after selling the vehicles in question and therefore, the impugned judgment is liable to be set aside. He has placed reliance on the decisions of the Hon'ble National Commission in First Appeal No. 2343/ 2019 tiled Priya Ajit Singh v. Mahindra & Mahindra Automotive Division and 3 Ors, decided on 02.03.2020.
7. In view of the aforesaid submission, the first question which requires our adjudication is whether the Respondent No.1 cease to ALLOWED PAGE 8 OF 12 FA/150/2014 SAMARA FORD V. KJR DEVELOPERS & ORS. DOD: 25.08.2022 be a 'consumer' when the vehicles in question was sold during the pendency of the appeal.
8. On perusal of record, it is noted that Respondent No.1 has neither taken any permission from this Commission before selling the said vehicles nor informed this Commission after the sale. It was only upon filing of an application by the Appellant that Respondent No.1/Complainant admitted the factum of selling the vehicles in question.
9. It is appropriate to refer to First Appeal No. 2343/ 2019 tiled Priya Ajit Singh v. Mahindra & Mahindra Automotive Division and 3 Ors, decided on 02.03.2020, wherein the Hon'ble NCDRC has held as under:
"8. The Appellant had sold the vehicle during the pendency of the Complaint before State Commission, without their prior permission. It is therefore not possible to get the vehicle inspected by an expert to ascertain the defects as mentioned by the Appellant in the Complaint. The Appellant himself admitted the fact that he sold the vehicle during the pendency of the Complaint in replication to written statement of Respondent No. 3. The State Commission, therefore, held that the Appellant ceased to be a "consumer" as defined under the Act. In support of the aforesaid view, the State Commission relied upon the judgement of Tata Motors Ltd. Vs. Hazoor Mahraj Bala Das Rajji Chela Baba Dewa Singhi MANU/CF/0643/2013 : IV (2013) CPJ 444 NC, whereby this Commission held that once the vehicle was sold during the pendency of the complaint, the complainant does not remain a consumer for the purpose of the Act.
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In M/s. Honda Cars India Ltd. Vs. Jatinder Singh Madan & Anr., this Commission held that when a vehicle in question was sold by the complainant during the pendency of the appeal, the complainant ceases to be a consumer within the meaning of Section 2(1)(d)(ii) of the Act and the consumer complaint was dismissed on that sole ground.
Reliance is also placed on judgement, Mr. Rajiv Gulati Vs. Authorised Signatory, M/s. Tata Engineering and Locomotive Co. Ltd. & Ors., (FA/466/2008 decided on 23.04.2013), whereby this Commission held that as the vehicle has been sold by the complainant during the pendency of appeal, the complainant ceased to be a consumer under the Consumer Protection Act and complaint was liable to be dismissed.
9. This Commission in Tata Motors Ltd. Vs. Shri Manoj Gadi and Sanya Automobiles Pvt. Ltd. RP No. 2321 of 2008 decided on 08.05.2014 held as follows:-
The respondent should not have sold the said vehicle during the pendency of the proceedings before the National Commission. As observed above, it is not possible to have the order of the State Commission executed because the vehicle no longer remains with the petitioner. The factum of any manufacturing defect being there or not, can also not be ascertained by any expert evidence at this stage. In the case of Rajiv Gulati versus M/s. Tata Engineering & Locomotive Company Ltd. & Ors.(supra), it has been clearly stated that when the vehicle had been sold, it was not possible to establish by cogent evidence that it suffered from any manufacturing defect. In this very case, it has been observed that the depreciated value of the vehicle is presumed to be less than the sale-consideration. This may not be the position in the present case but still, ALLOWED PAGE 10 OF 12 FA/150/2014 SAMARA FORD V. KJR DEVELOPERS & ORS. DOD: 25.08.2022 the complainant should have sought the permission of the court before selling the vehicle.
Under these circumstances, when the order of the State Commission cannot be implemented due to the sale of the vehicle by the Complainant, this Appeal is allowed and we order accordingly. The consumer complaint is ordered to be dismissed with no order as to costs.
10.In view of the above, we find no merits in the present Appeal and dismiss the same, leaving the parties to bear their own costs."
10. Relying on the above settled law and in view of the fact that the vehicles regarding which the Respondent No. 1 had filed a complaint alleging manufacturing defect before the District Commission, have been sold by it. We are of considered opinion that the Respondent No.1 is no longer a 'consumer' under the provisions of the Consumer Protection Act, 1986.
11. Consequently, the present appeal is allowed and the impugned judgment dated 30.08.2013 passed by learned District Commission in CC No. 504/2006 titles 'M/s. K.J.R. Developers Pvt. Ltd. V. M/s. Samara Ford & Ors.' is set aside with no order as to costs.
12. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
13. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
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14. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
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