State Consumer Disputes Redressal Commission
Hemant Goyal Motors Pvt. Ltd. vs Jagwinder Singh on 1 December, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1396 of 2014
Date of institution: 14.10.2014
Date of Decision: 1.12.2015
Hemant Goyal Motors Pvt. Ltd., Rajpura Road, Patiala, through its
Manager Mr. Gulshan Kumar.
Appellant/Op No.1
Versus
1. Jagwinder Singh S/o Sh. Baldev Singh, R/o H. No. 36/1, Guru
Nanak Nagar, Bahadurgarh, District Patiala.
Respondent No.1/Complainant
2. M/s Tata Motors Limited, Mumbai House, 24, Homi Modi Street,
Mumbai through its Managing Director.
Respondent No.2/Op No. 2
First Appeal against the order dated 28.8.2014
passed by the District Consumer Disputes
Redressal Forum, Patiala.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. S.R. Bansal, Advocate
For respondent No.1 : Sh. Jagvinder Singh, in person
For respondent No.2 : Sh. Sanjeev Roy, Advocate
First Appeal No. 1396 of 2014 2
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/Op No. 1(hereinafter referred as "OP No. 1") has filed the present appeal against the order dated 28.8.2014 passed by the District Consumer Disputes Redressal Forum, Patiala(hereinafter referred as the District Forum) in consumer complaint No.78 dated 31.3.2014 vide which the complaint filed by respondent No.1/complainant(hereinafter referred as the complainant) vide which the complaint filed by the complainant was allowed with a direction to Op No. 1 to replace the Bare Engine of the car with a brand new one and also pay Rs. 10,000/- as compensation and Rs. 5,000/- as litigation expenses.
2. Complaint was filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') against the OPs on the averments that complainant had purchased a car model Indica Vista LX-TDI bearing registration No. Pb-11-AZ-5681, chassis No. MAT608525CPC21187, engine No. 4751DT14CXYP18448 from Op No. 1 on 11.4.2012 for a sum of Rs. 4,95,394/-. Due to manufacturing defect in the car, which started giving problem after sometime of its purchase. It offenly stopped on the way due to over- heating of the engine. It was got examined and serviced from Op No. 1 from time t time but it did not work in a smooth manner. Lastly the car was examined by Op No. 1 on 6.1.2013 and Op No. 1 had issued a receipt with the observation that engine needed to be replaced. The car was under warranty for a period of two years, therefore, it was under warranty. Complainant visited Ops several times and First Appeal No. 1396 of 2014 3 requested orally as well as in writing for the replacement of the engine but the Ops did not bother. He had also lodged a complaint on customer helpline No. i.e. 18002097979 and a complaint No. I- 20077785431 dated 16.10.2013 at 6.57 a.m., second complaint No. I- 200543636634 dated 2.12.2013 at 7.04 a.m., third complaint No. I- 20638815807 dated 13.12.2013 at 8.15 a.m., fourth complaint No. 20967314151 dated 22.1.2014 at 8.50 a.m., fifth complaint No. 1- 21281988201 dated 27.2.2014 at 6.15 p.m. and sixth complaint No. 1-21281988201 dated 9.3.2014 were lodged and then he issued a notice through Advocate Sh. Sunil Kumar Garg, on 14.3.2014 to replace the defective engine with a new one but with no result. Act of the Ops amounted to deficiency in service. Hence, the complaint with a direction to Ops to replace the engine, pay Rs. 1 lac for causing mental agony and harassment and Rs. 25,000/- as cost of litigation.
3. Complaint was contested by Ops. Op No. 1 in its written version took the preliminary objections that the complaint was totally false, frivolous and no consumer disputes was involved as Op No. 1 had offered for replacement of reconditioned bare engine but the complainant refused to get it; complaint was filed with an ulterior motive to pay undue benefit under the Act. However, the complainant remained adamant for replacement of new engine. On merits, it was stated that the warranty period was already over. Purchase of the vehicle was admitted. However, after observing the defect in the engine, this respondent had offered the complainant, the reconditioned engine but the complainant was not ready for that First Appeal No. 1396 of 2014 4 replacement. There was no deficiency in services on the part of this Op. Complaint was without merit and it be dismissed.
4. Op No. 2 in its written version took the preliminary objections that the complaint was an abuse of the process of law and had suppressed the material facts. The averments made in the complaint were vague, baseless with malafide intent to take undue benefit of the provisions of the Act. There was no expert report as required under Section 13(1)(c) of the Act to establish the manufacturing defect. Whereas the complainant was bound by the terms and conditions of the warranty clauses. Relationship between Op Nos. 1 & 2 were on principal to principal basis. This op cannot be held liable for independent act of omission and commission of other Op. The vehicle purchased by the complainant was of highest quality and complainant had taken the delivery after being satisfied with the condition of the vehicle and its performance. Even Pre Delivery Inspections (PDI) are done by the Dealer and then the vehicles are marketed and sold to the customers. Moreover, the complainant had raised the issues, which involved questions of facts as well as law and it necessarily require deposition of evidence and trial, which cannot be done in the summary procedure under this Act, therefore, the matter was required to be referred to the Civil Court. On merits, purchase of the vehicle by the complainant from Op No. 1 was admitted. However, it was denied that there was any manufacturing defect or it used to stop on the way due to overheating of the engine. The complainant had not annexed any job card in support of his averments and inspection temperature sensor was found defective, First Appeal No. 1396 of 2014 5 which was replaced. Further on 12.2.2013 when the complainant had brought the vehicle for 3rd service, the complainant did not lodge any complaint with regard to the engine overheating. No doubt that warranty was upto 10.4.2014 but it had not expired. Lastly the vehicle was brought by him on 8.4.2014 at the workshop when it had travelled 21598 Kms., therefore, in case there would have been any manufacturing defect then how the vehicle would have travelled to that extent. Complaint was without merit and it be dismissed.
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-A, invoice Ex. C-1, sale certificate Ex. C-2, job card Exs. C-3 & 4, warranty terms Ex. C-5, legal notice Ex. C-6, postal receipts Exs. C-7 & 8, medical certificate Ex. C-9, owner's manual booklet Ex. C-10. On the other hand, Op No. 2 had tendered into evidence affidavit of M.K. Bipin Ex. Op-A. Op No. 1 had tendered into evidence affidavit of Gulshan Kumar, HR Manager Ex. Op-B, guidelines Ex. Op-1, Microsoft Internet Explorer Ex. Op-2.
7. After going through the allegations in the complaint, written versions filed by the OPs, evidence and documents brought on the record, the complaint was allowed as referred above.
8. Aggrieved with the order passed by the learned District Forum, the appellant/OP No. 1 has filed the present appeal.
9. We have heard the learned counsel for the parties. First Appeal No. 1396 of 2014 6
10. Counsel for Op No. 1 has argued that Op No. 1 was ready to replace the reconditioned bare engine but the complainant did not agree to it. The District Forum committed a grave error by fixing the liability only upon Op No. 1 whereas in the case of manufacturing defect, the responsibility should have been upon Op No. 2. Moreover, there was no expert report justifying any manufacturing defect.
11. Purchase of the car by the complainant on 11.4.2012 for a sum of Rs. 4,95,394/- from Op No. 1, manufactured by Op No. 2 is admitted. It carry warranty for two years, therefore, it had the warranty upto 10.4.2014. The complainant apart from his own affidavit has placed on the record Ex. C-1 invoice, Ex. C-2 sale certificate, Ex. C-3 job card dated 4.10.2013 in which the complaint was lodged by the complainant with the Op and the Ops had checked the vehicle and observed as under:-
"We check the coolant level is low & top up coolant vehicle and observe that no coolant leakage in vehicle and check for radiator fan working and then the test drive of 60 Kms and found coolant level depresses and half 1 LIR coolant is filled after the test drive."
The 2nd job card Ex. C-4 in which similar problem was reported and Op No. 1 observed as under:-
"We observe that vehicle is not a hit case, air filter is OK, we found coolant level is very low (below minimum) but there is no leakage of coolant, radiator fan OK, Thermostat valve is Ok, First Appeal No. 1396 of 2014 7 Radiator pressure cap is Ok. No DTC found in Diagnostic Software. Need engine replaced."
12. This report makes it clear that it needed replacement of the engine.
13. The counsel for Op No. 1 further contended that as per the guidelines issued by Op No. 2 in case the vehicle had covered upto 20000 Kms, they were required to change reconditioned engine. However, these are internal guidelines between Op Nos. 1 & 2 whereas the warranty terms are recorded in Owner's Manual and Service Booklet Ex. C-10 according to which the relevant warranty term is as under:-
"This warranty shall be for 24 months from the date of sale of the car or 75000 km whichever occurs earlier. However, for the cars with yellow number plates used for commercial applications (including those used for hire or reward viz those operating with a yellow number plate), the warranty shall be limited to 24 months or 50,000 kms, whichever occurs earlier."
14. In these warranty clauses, there is no reference of any guidelines referred above that in case any defect has occurred in the engine after upto 20000 Kms. then only reconditioned bare engine will be replaced. It is clear that parties are bound by the terms and conditions of the policy. The defect had occurred within the warranty period, therefore, the Ops were bound to rectify the same.
15. So far as the expert report is concerned, then Service Engineer of Op No. 1 is giving the observation with engine needed replacement then no other expert report was required. First Appeal No. 1396 of 2014 8
16. It is further contended by the counsel for Op No. 1 that the District Forum has wrongly placed the liability only upon Op No. 1 whereas it should have been Op No. 2. No doubt that relationship between Op Nos. 1 & 2 are on principal to principal basis that in case there is manufacturing defect then manufacturer cannot go scot free and liability cannot be fixed with Op No. 1 only and to that extent the order passed by the District Forum required modification.
17. No other plea was raised.
18. In view of the above, we partly accept the appeal and modify the order passed by the District Forum with a direction that Op Nos. 1 & 2 will be jointly and vicariously liable to replace the engine of the car with a brand new one. So far as compensation and litigation expenses are concerned that will remain as ordered by the District Forum.
19. The appellant had deposited an amount of Rs. 7,500/- with this Commission in the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to respondent No.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
20. Remaining amount, if any due, shall be paid by appellant to respondent No. 1/complainant within 30 days from the receipt of the copy of the order.
21. The arguments in this appeal were heard on 24.11.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
First Appeal No. 1396 of 2014 9
22. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member December 1, 2015. (Surinder Pal Kaur) as Member