DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 83_ OF ___2014
DATE OF FILING :28.2.2014 DATE OF PASSING JUDGEMENT: 5.4.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker
COMPLAINANT : Rafiqul Baidya, son of Nechar Ali Baidya of Pipul Dahagarh, Bamanpukur, P.S Minakhan, Dist. North 24-Parganas
- VERSUS -
O.P/O.Ps : 1. Maruti Udyog Ltd. Gurgaon, Sector-18, Delhi.
2. Dewar’s Garage Ltd. 4A, Council House Street, P.S Hare Street, KolkaA _ 700 001.
3.. Mohan Motor Udyog Pvt. Ltd. Mohan Gardens, E.M Bypass, P.S Tiljala, Kolkata – 700 105.
` 4. Dewar’s Garage Ltd. 5, Hide Road, P.S Taratala, Kolkata-700 043.
5. Dewar’s Garage Ltd. 14, British India Street, P.S Hare Street, Kolkata – 700 069.
_____________________________________________________________________
J U D G E M E N T
Sri Ananta Kumar Kapri, President
To speak the whole drift of case, manifested in the petition of complaint, the complainant as named above purchased a Maruti Car of Model Maruti Omni 8 STR BS IV on 21.5.2012 from the showroom of O.P-2 on payment of Rs.1,38,323/- . But within a few days of the purchase, the car started creaking and screeching violently and peculiarly while opening and closing its doors, front and rare and also at the time of plying on the road. So, the vehicle was taken to O.P nos. 3 and 4 for free service one after another and the problem remained unredressed. O.P nos. 3 and 4 who are the Authorized Service Providers of the company i.e O.p-1, failed to make any solution . Then, on 31.10.2012 the car was again taken to O.P-5 , another authorized service provider for free service and the problem was reported to him. The O.P-5 inspected the vehicle and divulged before the complainant that doors of the car have been rust coated and they require to be replaced , which can be done only by the company i.e O.P-1 . Now, the instant case is filed by the complainant alleging deficiency in service on the part of the O.Ps and the complainant has prayed herein for replacement of the car by a brand new one and also for payment of compensation etc. Hence, the case.
The O.P-1 i.e the manufacturer company is contesting the case by filing written statement ,wherein it is inter alia contended that the vehicle was sold to the complainant with a warranty for a period of 24 months or for 40,000 Kilometers from the date of purchase. There is no manufacturing defect in the vehicle and rust formation as alleged is due to negligence and careless handling and maintenance of the car by the complainant. The complainant has fitted one extra large front bumper grill outside the vehicle and this has caused misalignment and noise in the vehicle. According to him, the car has to undergo a lengthy and exhaustive process in the factory during painting process which consists of several steps ,such as Electro Deposition (ED) coating, Intermediate coating, Wet Sanding Process, Top or Final coating followed by another series of tests and inspection. There cannot be any manufacturing defect left in the vehicle in so far as the painting is concerned. The complainant has violated the terms and conditions of the warranty; the period of warranty expired on 20.5.2014 . The material fact has been kept suppressed by the complainant and that he is , therefore, not entitled to get relief as prayed for.
Written objection is also filed on behalf of the O.P nos. 2,4 and 5 (Dewar’s Garage) , whereby they have contended inter alia that the satisfactory service was rendered to the complainant. But as they are bound by the terms and conditions of business, they cannot replace the car of the complainant by a new one. According to them, it is only the manufacturing company i.e O.p-1 who can replace the existing car by a new one . They have no negligence on their part in so far as the rendering of free service is concerned , and therefore, the complaint should be dismissed in limini against them.
O.P-2 is also contesting the case by filing written statement. Denying all the material allegations levelled in the petition of complaint it is stated by the O.P-3 that where the complainant himself has made it clear that the car has inherent manufacturing defect, the question of liability of O.P-3 does not at all arise. The O.P-3 did not sell the car to the complainant, nor did he manufacture the car and , therefore, he is not authorized to replace the existing car of the complainant with a new one. It is the manufacturing company and the dealer who are liable for the grievance raised by the complainant and the complaint should be dismissed in limini against him for want of cause of action.
Upon the pleadings of the parties following points are formulated for consideration.
- Are the O.Ps liable for deficiency in service for not removing the problem arising in the car of the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
The parties have filed their evidence on affidavits which are kept in the record. The questionnaires, replies and BNAs filed herein are also kept in the record for consideration.
DECISION WITH REASONS
Point no. 1 & 2:-
Already heard the submissions of the ld. Lawyers appearing for both the sides. Perused the complaint, written version, evidences adduced on behalf of the parties, questionnaires, replies thereto etc.
Considered all these.
It is grievance of the complainant that within a few days of the purchase of the car by him the car got rust coating in its four doors and , therefore, a peculiar screeching sound came out while opening and closing the doors of the car and also at the time of plying on the road. It is the further case of the complainant that he produced the car before the O.P nos. 3 and 4 for free service as per terms and conditions of warranty and requested them to address the problem his car was facing with. But none of them was able to address that problem. Last of all, he produced the car before the O.P-5 , another service provider on 31.10.2012 and O.p-5 told him that all the four doors of the car required replacement which can only be done by the company itself i.e O.P-1.
O.P-1 is the company itself and O.P-2 is the dealer of the said company. The car was sold to the complainant by the O.P-2. O.P nos. 3 ,4 and 5 are the authorized service providers of O.P-1. O.P-1 has filed written statement. In paragraph 6 thereof, it is admitted by the O.P-1 that there is accumulation of rust on the four doors of the car ,but he wants to avoid his responsibility on the ground that those doors gathered rust due to negligence and careless maintenance of the vehicle by the complainant. O.P nos.2, 4 and 5 have filed written statement ,wherein they have stated that the replacement of doors of the car can only be done by the company itself i.e O.p-1 and not by them.
In the context of submission and counter submissions of parties as referred to above, it is to be seen whether the complainant has been able to prove that there was accumulation of rust on the four doors of his car. O.p-1 has admitted that there is rust on the four doors of the car. That apart, the complainant has filed a job card (annexure B) with the complaint which is issued by O.P-5. O.P-5 is the authorized service provider of O.P-1. It is mentioned in the said job card (annexure B) that the doors of the car have gathered rust. So, the fact remains that doors of the car of the complainant have been rust quoting and the peculiar screeching sound is produced for that reason at the time of opening and closing of the doors.
Now to see whether this defect of the vehicle can be treated as a manufacturing defect or not. It has been averred in the written statement filed by the O.P-1 that the vehicle has to undergo a cumbersome process at various stages extending over about eight hours before its delivery to the dealer for sale and there ,therefore, cannot remain any manufacturing defect in the vehicle. Such argument of O.P-1 appears to be grossly flatulent. It is true that the vehicle has to pass many tests in the factory of the manufacturer. But still there may be defect left in the vehicle and it is an universal truth. Man is also produced in the factory of the almighty. The vehicle of the O.P-1 passes various tests in his factory extending over eight hours before its delivery for sale. But a man has to pass a complete period of 10 months in the factory of the almighty i.e the mother’s womb before he is born. But, we have seen that there are so many deaf and dumbs, blind persons , lame footed persons and men with various physical deformities. We may call that these are manufacturing defects of human being. So, taking into consideration all these things, we feel constrained to say that there may be manufacturing defect left in the vehicle, however tremendous and exhaustive process the vehicle is forced to undergo before its sale. Far be it from us to accept the above submissions of O.p-1 and therefore, we discard that submission of O.P-1 and hold that the complainant has been able to prove that there is manufacturing defect in his vehicle and , therefore, the vehicle is giving out peculiar screechingsound while closing or opening the doors of it.
Then comes the question whether the existing vehicle of the complainant should be ordered to be replaced by a brand new vehicle. The manufacturing defect has been discovered by the complainant within the period of warranty. Complainant purchased a brand new car of O.P-1 . But he has been deprived of enjoying the full tastes of that car. His thirst for a brand new car has remained ever unquenchable. The car developed the defect within a few months of its purchase. It was purchased on 21.5.2012 and the first free service wasmade on the car on 19.6.2012. So, it is found that within a month the defect was detected by the complainant. To sell a car to a consumer with manufacturing defect in it is undoubtedly an act of deficiency in service on the part of O.P-1 andO.P-1 will have to replace the existing car of the complainant by a brand new car.
It has been argued on behalf of the O.P-2 ,4 and 5 thatthe manufacturing company is itself liable for any kind of manufacturing defect and the dealer or the service providers cannot be held liable in any way for such defect. This is the general rule. But this rule is subject to an exception and the exception has been provided by the Hon’ble Apex Court in Indian Oil Corporation Vs. Consumer Protection Council II ( 1994) CPJ 21(SC) ,wherein it has been held that once delivery of vehicle is given to the dealer after realizing the price from the dealer, the relationship between the manufacturer and the dealer was not of principal and agent but of vendor and purchaser and the company is not liable to either deliver the vehicle or to refund the deposited amount or to pay compensation to the complainant .
Coming to the facts of the instant case it is found that there is no such averment made by O.P nos. 2that the vehicle was received by O.P-2 having paid the price thereof to the manufacturing company. In absence of such averment we feel no difficulty to hold that the price of the vehicle was not realized from the dealer by the manufacturing company i.e O.P-1 and, therefore, the relationship of principal and agent subsisted between the O.P-1 and O.P-2 . This being so, the O.P-2 being the agent of O.P-1 should be held liable to the complainant for selling the car to the complainant with manufacturing defect. The remaining O.Ps,being service providers are found to be not deficient in providing service to the complainant. The liability of all the O.Ps i.e O.P nos1 & 2 are joint and several and they all remain responsible to the complainant.
Upon what has been discussed above, the complainant is found entitled to reliefs and the relief is provided as hereunder.
In the result ,the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos. 1 & 2 with cost of Rs.5000/- and dismissed on contest against the other O.Ps without costs.
The O.P nos. 1 & 2 who will remain jointly and severally liable for satisfying the decree, are directed to replace the existing vehicle of the complainant by a brand new vehicle, free from all defects, of the same kind and model and also to pay cost of Rs.5000/- as referred to above within a month of this order , failing which, the complainant is at liberty to execute the order in accordance with law.
The complainant is directed to return the old vehicle as soon asthe brand new vehicle is provided to him by the said O.Ps.
Considering the facts and circumstances and also the relief granted to the complainant, we do feel urge not to pass any order for compensation against the O.Ps.
Let a free copy of this order be given to the parties concerned at once.
President
We / I agree.
Member Member
Dictated and corrected by me
President
