BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD.
F. A. No. 245 of 2014 against CC 449 of 2010, District Consumer Forum II, Hyderabad.
Between:
Mr. Mahesh Koliengode,
S/o K.M. Viswanathan,
R/o H.no. 7-4-12/16, Tirumala colony, LB Nagar
Hyderabad 500 074 .. Appellant/complainant
And
- Fiat India Automobiles Pvt. Ltd rep by its CEO,
Lal Bahadur Sasthri Marg, kurla
Mumbai 400 070
Registered office
B-19, Ranjangaon MIDC Industrial Area
Ranjangaon 412210
Taluka Shirur, Dist- Pune, India
And
- Mahesh Kollengode, S/o Viswanathan
R/o 7-4-12/16, Tirumala colony, L.B. Nagar
Hyderabad – 500 074 …. Respondent no.1/complainant
- Concorde Motors (India) Ltd
Registered office 3rd floor
Nanavati mahalaya,18 Homi Mody street
Hutatma chowk, Mumbai – 400 001.. Respondent no.2/OP. no.2
- Autofin limited
No. 33, Medchal High Way
Bowenpally check post, Bowenpalle
Secunderabad – 500 011 .. Respondent /OP No. 3
Counsel for the Appellant : M/s. Abhay Singh
Counsel for the Respondents : M/s. S. Mohan Reddy for R1
M/s. A. P. Venugopal for R3.
F. A. No. 872 of 2013 against CC 449 of 2010, District Consumer Forum II, Hyderabad
Between:
Fiat India Automobiles Pvt. Ltd rep by its CEO,
Lal Bahadur Sasthri Marg, Kurla
Regd. Off :B-19, Ranjangoan MIDC Industrial Area
Ranjangaon – 412 210, Taluka-Shirur
Pune District, India .. Appellant/opposite party no.1
And
- Mahesh Kollengode, S/o Viswanathan
R/o 7-4-12/16, Tirumala colony, L.B. Nagar
Hyderabad – 500 074 …. Respondent no.1/complainant
- Concorde Motors (India) Ltd
Registered office 3rd floor
Nanavati mahalaya,18 Homi Mody street
Hutatma chowk, Mumbai – 400 001.. Respondent no.2/OP. no.2
- Autofin limited
No. 33, Medchal High Way
Bowenpally check post, Bowenpalle
Secunderabad – 500 011 .. Respondent /OP No. 3
Counsel for the Appellant : M/s. B. Mayur Reddy
Counsel for the Respondents : M/s. J. Prabhakar for R-2
QUORUM: HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA, PRESIDENT.
AND
SRI. R. LAKSHMINARASIMHA RAO, HON’BLE MEMBER
THURSDAY, THE TWENTY FIRST DAY OF AUGUST
TWO THOUSAND FOURTEEN
Oral Order (As per Sri R. Lakshminarasimha Rao, Hon’ble Member)
***
01. The opposite party no. 1 has filed FA No. 872 of 2013 and the complainant preferred FA No. 245 o 2014 challenging the order dated 08.08.2013 in CC 449 of 2010 on the file of District Consumer Forum III, Hyderabad.
2. The complainant purchased Fiat Palio 1.3 SDX car on 20.06.2009 from the opposite party no 2 for consideration of Rs.4,62,481/- besides a sum of Rs.41,620/- towards life time road tax, a sum of Rs.14,021/- towards the premium for obtaining insurance policy and an amount of Rs.5,000/- towards extended warranty and also a sum of rs.2,500/- towards handling charges and for a total amount of Rs.5,25,522/-. The first opposite party is the manufacturer of the car and the second opposite party and third opposite party are its dealers. The free service to the car was effected on 3.7.2009. On 26.08.2009, the complainant had taken the car to the opposite party no. 3 which informed him that replacement of certain parts in terms of warranty could not be made due to condition of the car.
3. The complainant through e-mail dated 28.08.2009 requested the opposite party no. 1 to make enquiry as to whether the car was damaged and on 11.09.l2009 the opposite party no. 3 confirmed that the car was damaged. The complainant passed on intimation to the opposite party no. 2 (on 12.09.2009) and its Sanathnagar Service Centre inspected the vehicle on 12.09.2009. The complainant came to know through the opposite party no. 3 that the car was involved in an accident prior to the date of its sale. The opposite party no. 2 sold the car to the complainant as if it was a new vehicle. The car ran a distance of 100 kms prior to its sale to the complainant. The damage sustained by the car can be noticed by a technical person after dismantling the front bumper and headlight. On 24.10.2009, the complainant had taken the car to the opposite party no. 2 with a request to replace with a new car. On 30.10.2009, the opposite parties informed him that the car was repaired and can be taken back. The complainant got issued notice on 23.11.2009 with a request to replace the car or refund the amount with interest thereon and on failure of the opposite parties to comply with his request, he filed the complaint before the District Forum.
4. The first opposite party resisted the claim contending that adequate amount of care was taken in relation to the manufacture of the vehicle. The opposite parties 2 and 3 are not the agents of the opposite party no.1 and the opposite party no. 1 cannot be held liable for any act of the opposite party no. 2 and 3. On sale of the vehicle, the liability of the opposite party no. 1 is limited to the warranty terms. The complainant had the opportunity of making specific inspection of and for test drive of the vehicle. Any defect in the vehicle has come up because of the wrongful handling of the vehicle or any mishap that may have occurred to the vehicle. The vehicle does not suffer from any manufacturing defect. The vehicle was attended to whenever it is brought to the service centre. The opposite party no. 1 is not aware of the transaction between the complainant and the second opposite party. The complainant after using the car for a long period, has no right to demand for refund of the value of the vehicle. Any dispute in relation to the terms of warranty is subject to the jurisdiction of Courts in Mumbai and the District Forum has no jurisdiction to entertain the complaint.
5. The opposite party no.2 contended that the opposite party no.3 and it are the dealers of the opposite party no.1. The delivery of the car to the opposite party no. 3 on 26.8.2009 for second service is the matter in between the complainant and the opposite party no.3. On request of the complainant the Sanathnagar Service Centre of the opposite party no. 2 inspected the car and the vehicle was not found to be suffering from any major defect. The car was not used prior to its sale to the complainant. The complainant has been using the vehicle from 26.8.2009. The car was brought for third service on 26.10.2009 to the opposite party. The opposite party no. 2 in the normal course of business activity replied through e-mail that it would look into the matter and it issued notice on 18.12.009 requesting the complainant to take back the vehicle else she has to pay demurrage charges.
6. The opposite party no. 2 had sent e-mail on 12.11.2009 to the complainant and clarified that the vehicle was in perfect condition at the time it was delivered to the complainant and the opposite party no. 1 checked the records and informed the opposite party no. 2 that no repair requiring on account of damage to the vehicle in an accident was made at any of the authorized workshops. At the time of free delivery inspection, the damage or repairs if any would be noted in the PDI report. The OP no.2 had issued reply to the notice of the complainant the car ran about 15134 kms by the time third free service was carried out on 26.10.2009. The complainant failed to take back the vehicle and he is liable to pay demurrage charges for the period during which the vehicle is in the work shop of the opposite party no. 2. The vehicle hampers the working since the other vehicles cannot be serviced on account of it remaining in the workshop. The opposite party no.2 issued reminders to the complainant to pay the charges and collect the vehicle which the complainant failed to perform and as such the complainant is liable to pay exemplary costs to the opposite party no.2.
7. The opposite party no 3 has contended that the complaint is not maintainable against it. The complaint is bad for misjoinder of necessary parties. The complainant is not consumer and there is no privity of contract in between the complainant and the opposite party no. 3. The District Forum, Hyderabad has no jurisdiction to entertain the complaint as the opposite party no. 3 is not carrying business within the jurisdiction of the District Forum. The opposite party no. 3 has not informed the complainant on 26.08.2009 that the replacement of the parts covered under warranty was not possible due to the condition of the car. The complainant has not submitted any document in support of his case. In the e-mail dated 12.11.2009 it was stated that after inspection of the car and verifying the record, the car was delivered to the complainant in perfect condition. The complaint is frivolous and hence prayed for dismissal of the complaint against opposite party no. 3.
8. In support of his claim, the complainant has filed his affidavit and the documents, ExA1 to A18. On behalf of the opposite parties, its authorized person filed his affidavit and the documents, ExB1.
9. The District Forum allowed the complaint on the premise that there has been deficiency in service on the part of opposite party no. 2 in attending the complaints concerning the car. The District Forum directed the opposite party no. 2 to deliver the car in defect free condition and extend the warranty period for two years.
10. Dissatisfied with the order of the District Forum has filed the appeal contending that the District Forum has not considered the evidence on record in correct perspective and the District Forum is swayed away by the report of m/s. Tejaswini Motors Private limited which is not submitted on complete inspection of the vehicle.
11. The opposite party no. 1 has filed appeal contending that the order of the District Forum is contrary to law and not based on any evidence.
12. The learned counsel for the opposite party no. 1 has filed written arguments.
13. The points for consideration are:
- Whether the opposite party no.2 sold defective or damaged car to the complainant?
- To what relief?
14. The sale of the car bearing chassis number MCA 7888F08072702CQZ engine number 3460 - which was manufactured by the opposite party no.2, to the complainant by the opposite party no.2 and the allotment of registration number AP 29 BF 78981 to the car by the RTA concerned are beyond any dispute. The complainant has stated that the opposite party no.2 sold a used and damage of car to him which fact he said to have come to know after the car was inspected during second free service by the opposite party no.2 whereas the opposite party no.1 contended that it supplied defect free car to the opposite party no.2 and the opposite party no.2 in turn contends that there was no any damage caused to the car at the time delivered the vehicle was delivered to the complainant. The contention of the opposite party no.3 is that it had not informed the complainant that the car was damaged and the repair required was beyond the terms of the warranty.
15. The learned counsel for the opposite party no. 1 has placed reliance on the decision of the Hon’ble National Commission in TATA Motors Vs. Hazoor Maharaj Baba and another “ in RP No. 2562 of 2012 decided on 25.09.2013 in support of his contention that “ unless the manufacturing defect is found in the vehicle replacement of the vehicle became with a new vehicle are cannot be done. The National Commission observed that :
“ the complainant sold the vehicle during pendency of the complaint before the District Forum and as such he cannot be considered as consumer. The complainant suppressing the fact that he sold the vehicle to the third party filed the complaint before the District Forum and therefore the National Commission set aside the order of the State commission and dismissed the complaint. In the case on hand, the complainant has not sold the vehicle to any other and the vehicle is lying in the garage of the opposite party no. 2. Thus, the aforementioned decision has no application to the facts of the case.
16. Admittedly, there was no complaint from the complainant when the opposite party no.2 delivered the car to him on 28.06.2009. The complainant had taken the car to the opposite party no.2 for free service on 03.07.2009 and at the time a job card was issued which would show no major problem in regard to the functioning of the car. It is noted in the job card that the first free service was done and by the time the vehicle covered a distance of 1127 kms. However, in his e-mail dated 28.8.2009 the complainant brought it to the notice of the opposite parties that by the time the car was delivered to him on 28.07.2009 the car had already run over 100 kms and to his query the executives of the opposite party no. 2 replied that it was a routine practice and there need be no concern. The complainant through the e-mail brought to the notice of the opposite parties that the vehicle suffered from certain problems such as squeaking steering, squeaking touch etc which he mentioned in the customer feedback received by Mrs. Lavanya of the opposite party no.2. The second and third paragraphs of the e-mail would also show that the problems reported by the complainant were attended to by the opposite party no. 2 and the paragraphs read as under :
“ When I took delivery, I noticed that the car had already run over 100 kms
To which the delivery executive explained that it was a normal and there is nothing to worry. Within few days of taking delivery I complained of wheel cover bearing the old fiat logo ( blue color) rattling hatch, squeaking steering, squeaking clutch, One Damaged tyre, Oilerd seat, and Midly Dented Bonnet. Also there was a mist of what I felt was paint on the front wind shield, which Concord Motors claimed as dust initially and later agreed saying it was paint that fell during painting work done to an adjacent car. I mentioned these issues in my customer feedback to Ms. Lavanya of Concord Motors and expressed that I was not happy with the product while appreciating the help extended to me by the showroom sales and delivery persons pavan and Srinivas in the entire process until then ( I had a sentiment to take delivery on a particular date and they offered full cooperation in the process ).
When the car was taken for first service the squeaking steering , squeaking clutch and the rattling hatch and wheel cover was fixed , the wind shield was also cleaned. The seat was not really cleaned but some effort was put into it. The executive who delivered the car submitted that he cannot do anything about the tyre. I needed the car badly so I compromised.”.
17. In the back drop of specific allegation of sale of a car with old logo and is suffering from problems which he reported in his feedback, the opposite party no.2 ought to have filed the affidavit of Mrs. Lavanya or produced the feedback furnished by the complainant at the time he had taken back the vehicle from the workshop of the opposite party no. 2. It is not disputed nor denied that the opposite party no. 1 would subject the vehicles to intense scrutiny before classifying them as roadworthy and fit to be sold in the commercial market. The complainant had taken the vehicle for the second free service to the opposite party no. 3 which is also an authorized dealer of the opposite party no.1. The opposite party no. 3 would contend that it has not informed the complainant that the vehicle was in damaged condition and repair could not be carried out free of cost in view of non applicability of the terms of the warranty. The opposite party no.3 takes shelter in terms of the statement of the opposite party no. 2 that the service Engineer is not competent to state about the condition of the car. There was no response to the notice of the complainant kept the opposite parties on notice about the information as to the damage caused to the vehicle. The complainant taking the vehicle to the opposite party no. 3 for the free service and the inspection thereof made as also information as to the condition of the car passed on to the complainant is stated as under :
“ However, Autofin refused to confirm I writing about the reasons for rejected warranty claim. During the service feedback call, whern asked for the same in writing, Mr. Ranadhir ( customer Relations Manager) said that company ‘ rules’ do not permit to provide written reasons for warranty claim rejections.
Meanwhile I contacted Concorde motors L B Nagar, Hyderabad and they initially claimed that the service engineer, who checked the car in autofin does not know anything, and their service engineer can give a better picture. After some time they called me back, to claim that the PDI shows no accident, and they are not responsible for it, because Concorde motors is a very big organization. Upon further discussion with Mr. Vishnu of Concorde, they suggested to meet in person ( face to face is the term they used ) to settle the issue.
I know for sure that my car was not involved in any major accident except for a small bump on right fender as I had mentioned above. Then How could the car have been delivered with such major structural damage and that too repaired and welded “.
Thus, the opposite party no. 3 refusing to acknowledge the intimation passed on to the complainant in regard to the damage caused to the car and its maintaining silence after receipt of the e-mail coupled with its attempt to take shelter in terms of the statement of opposite party no., 2 as to the incompetence of its service engineer to declare damage caused to the car would amply establish that the opposite party no. 3 failed to stick to the normal business norms and deviated there from in order to protect the interest of the opposite party no. 2.
18. During the pendency of the complaint, the vehicle in question was referred to M/s. Tejaswi Motors Private Limited in terms of the order dated 1.2.2011 passed by the District Forum and in pursuance of the order of the District Forum the representative, Nursing rao, team leader, Mr. Ravi inspected the vehicle and submitted report to the effect there was no underbody damage to the vehicle. An impact said to have been observed on the right hand member of the vehicle which is stated to have been either out of normal course or could be due to an accident. The expert has concluded that welding spots were found on the vehicle which according to them does not form part of manufacturing process. They opined: the complainant submitted a list of queries to be clarified about the vehicle and the questionnaire is made part and parcel of this report. It was observed that the wheel alignment values were found to be out of order, as also the front RH tyre wear. It is further observed that there is no underbody damage. There is an impact observed on the front RH member which arise out of normal course could be due to an accident. It is further observed that the Rear LH wheel arch has small wielding spots done with gas wielding which cannot be manufacturing defect as no welding works is done at the time of manufacturing of the vehicle. In our opinion, these problems of usager of vehicle come under normal wear and tear. However the wielding spots found on the vehicle does not form part of manufacturing process.
19. The representative of M/s Tejeswini Motors, which inspected the vehicle mentioned in the report that the questionnaire submitted by the complainant would form part of the report. However, the report does not show any answer to the work memo submitted on behalf of the complainant. The complainant raised objection by filing counter to the report of M/s. Tejaswini Motors and requested the District Forum to pass order directing inspection of the vehicle by another expert. Unfortunately, the District Forum has not taken into consideration of the failure on the part of the representatives of M/s. Tejaswini Motors to answer the query of the complainant. The representative of M/s. Tejawini Motors ought to have been directed to reinspect the vehicle taking into consideration of the objections raised on behalf of the complainant or the vehicle could have been directed for inspection by our another expert. The complainant has submitted the following points to be answered on inspection of the vehicle.
1. The damage to the front right side chassis
2. The left wheel arch damage
3. The repair work done to the front right side chassis.
4. the repair work done to the left wheel arch
5. whether any replacement of any part at the right side chassis is found
6. whether any replacement of any part near left wheel arch is found
7. whether any replacement by work is found anywhere in the vehicle ?
8. whether the damages mentioned above could have been repaired without the replacement and repairing of the exterior structure
9. whether the right side chassis could have been damaged structure ?
10. any other damages to the internal parts and the chassis under the car ?
11. the amount of the damages in many forms and the probable course of repairing
12. The genuine spare parts of ghe vehicle i.e., front lamps, head lights, fenders radiator grill, bumper, bonnet
20. It is pertinent to note that it is not a case of manufacturing defect of the vehicle. The complainant has made a specific mention of unfair trade practice played on him by the opposite party no. 2 in selling a used vehicle which was also got damaged and the damage caused to the car was successfully concealed by the opposite party no.2 which came to the fore only after a technician of the opposite party no.3 inspected the vehicle. Such being the position, the report of M/s. Tejaswini Motors Private limited cannot be said to have any significance.
21. The opposite party no. 2 failed to explain as to in which circumstances the vehicle ran a distance of 100 kms before it was delivered to the complainant. The complainant got issued notice to the opposite parties. The complainant referred to the repairs of the interior parts of the vehicle without there being any repair to the exterior parts as under :
“ My clients states that the damages are of such nature that they can only be identified by a technical person only fter dismantling the front bumper and headlight, but not by a user of car. The location of the damaged parts are near the internal structure of the car which could not have been damaged without the entire structure being damaged in the first place including the paint work and the accessories. Further, the repairs could not have been effected without dismantling, replacing or repairing the various other body parts including but not limited to the front bumper, fog lamps, headlights, front grill, radiator, right fender, bonnet, had the damage been done by my client. Further it is evidence from the paint works and the finishing that all the said external body parts are intact and have not been changed since time of delivery fo the car. My client further states that the internal structure of the car is critical to the overall safety of the car and the nature of the damages and the extent of repairs carried out on the car clearly compromise my client’s safety and could even pose a ;risk to life in case my client continues to use the car in its given condition.
22. In the light of the statement of the complainant supported by the contents of email dated and notice dated 23.11.2009, the complainant has discharged the onus on his part and the opposite party no. 2 failed to explain as to how the damage was caused to the vehicle and welding was got done to the car. It is incumbent on the part of the opposite party no.2 to satisfy the terms of the warranty which mandate sale of a defect free and brand new vehicle to the complainant. The complainant is not a technician to find out whether the vehicle suffered from a defect which could be only detected on inspection by an expert. The opposite party no.2 has failed to offer an explanation as to how a vehicle can be repaired without tampering with the original parts. In case, the complainant has caused the accident and damage to the vehicle, as per the report of the opposite party no.1 that the vehicle was not repaired on account of any damage due to an accident, by any of its authorized dealers or workshops. The genuine parts of the vehicle are available only with the opposite party no. 1 and its dealers. Even the report of M/s. Tejaswini Motors does not show replacement of genuine parts of the vehicle or their replacement with oehr parts of which are not genuine. Thus, viewed from any angle, the unfair trade practice played by the opposite party no. 2 on the complainant is manifest and the use of the vehicle by the complainant without knowing the fact that used and damaged vehicle was sold to him by itself is not a criterion for the opposite party no.2 to contend that the complainant cannot complain of such an act of the opposite party no.2.
23. For the foregoing reasons, we are of the considered view that the opposite party no.2 sold a used vehicle to the complainant and branded it as a new vehicle and thereby the opposite party no.2 resorted to play unfair trade practice on the complainant. The vehicle was delivered to the opposite party no. 2 for the purpose of third free service and since then it has been in possession and custody of the opposite party no.2. we hold the complainant entitled to replacement of the vehicle bearing registration No. AP 29 BF 7898 with a new vehicle of the same model. As such, the order of the District Forum which has not dealt with the unfair trade practice played by the opposite party no. 2 on the complainant is liable to be modified.
24. In the result, the appeal in FA 245 of 2014 is allowed and the order of the District Forum is modified. The Opposite party no. 2 is directed to replace the Fiat Palio 1.3 SDX car with a new car of the same model and pay costs of Rs.7,000/-. Consequently, the appeal in FA 872 of 2013 is dismissed. The complaint against opposite parties’ no. 1 and 3 is dismissed without costs. Time for compliance four weeks.
PRESIDENT
MEMBER
DATED : 21.08.2014.
