BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                       Dated this the 31^st day of August 2016

PRESENT

        SMT. ASHA SHETTY        :  HON’BLE PRESIDENT       

        SMT.LAVANYA M. RAI    :   HON’BLE MEMBER

ORDER IN

C.C.158/2012

        (Admitted on 26.05.2012)

Mr. Naveen Chandra Shetty,

Aged about 38 years,

S/o Shivaram Shetty,

Padumane, Petri Post,

Cherkady Village,

Udupi Taluk and District.

                                                     ……… Complainant 

(Advocate for Complainant by Sri Praveen Pinto.)           

VERSUS

1.  General Motors India Pvt. Ltd,

Chandrapura Industrial Estate, Halol,

Panchmahals Dist, Gujarath,

2. General Motors Pvt. Ltd,

     Customer Assistance Centre,

            Plot No.15,

            Echelon Institutional Area,

            Sector 32, Gurgaon, Haryana,

3. Front Line Automobiles,

    Automobiles,

         Kulur, Mangalore.

                                                            …. Opposite Parties

(Advocate for the Opposite Parties No.1 & 2  Sri. V.B)

(Advocate for the Opposite Party No.3   Sri. N.B.P.R)                                   

                                         ORDER DELIVERED BY HON’BLE PRESIDENT  SMT. ASHA SHETTY:

This complaint is filed under Section 12 of the Consumer Protection Act alleging defect in car against the Opposite Parties claiming certain reliefs.

 1.      The facts of the complaint in brief are as follows:

The Complainant purchased a car Chevrolet Beat bearing Engine No.B12D1155519KC3 and bearing chassis No.MA6BF482AAT002990 on 30.01.2010 by availing financial assistance from Vijaya Bank, Brahmavara Branch, Udupi Taluk from Opposite Party No.3 by paying a sum of Rs.3,94,990/ ( Rupees Three Lakhs Ninety Four Thousand Nine Hundred Ninety Only). The Opposite No. 1 and 3 have provided warranty of 3 years or 1,00,000 K.M from the date of purchase. It is stated that within one year of purchase, the engine of the said car was seized when the complainant was traveling to Pethri on important work. When the complainant complained to 3^rd opposite party where the complainant purchased the car, the workers of 3^rd Opposite Party came and towed the car to the workshop on 01.02.2011. The car was redelivered to the complainant after lapse of 28 days i.e. on 28.02.2011 after the repair and the complainant was made to pay a sum of Rs.2,152. 00 while taking delivery.  It is stated that within two days of taking delivery the gear of the car was not engaging.  Again the complainant complained to the Opposite Party No.3 and the workers of 3^rd opposite Party came and towed the vehicle to the workshop on 04.03.2011 and delivered to the complainant on 08.03.2011 after repair.  Again the A/C of the car was not working, sounds were coming in the front and light problems in the car. Therefore the complainant took the car to the workshop on 17.03.2011 and it was returned to the complainant on 19.03.2011.

 It is stated that, that there is a manufacturing defect in the above said car.  Even the complainant could not enjoy owning the car as most of the times he should send it for repairs besides mental inconvenience caused to him.  It became a nuisance for the complainant instead of convenience for which the complainant purchased the car.  The complainant not only incurred a liability by obtaining loan for purchase of the car, the car itself became a liability for the complainant.  There is no hope of perfect repair of car as the root cause of the complaint is manufacturing defect.  

Further, it is stated that the complainant had written a letter to the Opposite Parties on 29.03.2011 bringing the said fact to their knowledge and requested them to replace the said defect car.  Even though the Opposite Party has received the said notice has neither replied nor complied the request.  The complainant further submits that, due to the deficiency of service rendered by the opposite party by giving a defective vehicle caused the complainant irreparable damage.  The Opposite party is solely responsible for the said damage.  Feeling aggrieved by the above, the complainant failed U/S 12 of the Consumer Protection Act seeking direction from this FORA to the Opposite Parties  replace the car or refund the amount and also compensation and cost of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD. Opposite Party appeared through their counsel filed separate version.   The Opposite parties No 1 and 2 stated that they are incorporated under the provision of Companies Act 1956 affiliated company of Chevrolet Sales India Private Limited, which is taking care of the vehicles sales, service and marketing of vehicle manufacture by 1^st Opposite Party.  It is stated that the complainant cannot press and relief has against this Opposite Parties.  

It is further stated that the vehicle had a coolant leakage due to radiator puncture causing the engine to overheat, the symptom of engine overheating is well indicated by the glow of coolant warning lamp in the driver compartment which was ignored by the complainant and continued to drive the vehicle leading to engine seizure, had the complainant followed the instructions pertaining to in built safety provisions, this problem at the 1^st place would not have aroused at all.  Further stated that, the engine was rebuilt without insisting for any charges as the same was under warranty, however it is customary to charge for the consumables like engine oil, oil filter, sealants.  The complainant having plied the vehicle in contravention to the terms of the warranty cannot accuse them of having saddled him a defective vehicle.  The 1^st and 2^nd opposite parties further stated that, when complaints regarding non functioning of A/C, sound emanating from the front and the light problems were pointed out the same were duly attended by the 3^rd opposite party and the complainant expressing satisfaction of the over all performance of the vehicle took delivery of the same.

 And the vehicle faced some minor hiccups the same was attended by the 3rd Opposite Party and the vehicle delivered back in road worthy condition.  The vehicle has clocked 1004 k.m on 08.05.2012 no vehicle with manufacturing defect would be able to covered such a distance.  It is stated that even now they are   willing to identify the defects and rectify the same.  The Opposite Parties denied the defect in car and sought for dismissal of the complainant.

          Opposite party No.3 appeared through their counsel stated that the complainant purchased the car form opposite parties and it is admitted that car brought to the work shop on 01.02.2011. And the car was redelivered on 28.02.2011. Due to the leakage in the radiator of the vehicle and even though the indicator showed the same, the complainant failed to follow the indication shown by indicator and thus invited the problem.  This opposite party in view of the warranty provided by the opposite party No.1 complained the same to opposite party No.1 and after complying all the formalities sent a report and in view of the same, the opposite party No.1 has agreed to supply a new engine for the vehicle.  The said process took about some days and thereafter complainant speedily fixed the engine and delivered the vehicle soon on 28.02.2011.  In fact there is no lapse of whatsoever nature as alleged in

the complaint. The complainant has paid a sum of Rs.2,152/ while taking the delivery towards the consumables viz, oils, lubricants etc. Those consumable are never covered under the terms and conditions of the warranty.  Hence the same was demanded and paid by the complainant.  A clip fixed has come out due to which the gear was not functioning.  The same was also rectified by this opposite party.  There was no manufacturing defect or any other defect as alleged in the complaint.  The vehicle was brought to the work shop on 04.03.2011 that after attending the complaint of the complainant the vehicle delivered to the complainant on 08.03.2011 to his complete satisfaction.  But the complainant has come up with a problem pertaining to the A/C of the car, immediately the same was attended and rectified by this opposite party.  On all the three occasions as per the warranty given by the opposite party No.1, the complaints of the complainant were attended and after rectifying the complaints vehicle is delivered to the full satisfaction of the complainant.

There is no manufacturing defect nor deficiency on the part of the Opposite party No.3 sought for dismissal of the complaint.

3.      In support of the complaint, Sri. Mr. Naveen Chandra Shetty,  (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Ex C1 to C16 were marked for the complainant as listed in the annexure.    On behalf of Opposite Parties No.1 & 2 Mr. G. Padmanabhan, Zonal Manager has been examined (RW1) and on behalf of opposite party No.3 Mr. Vinod M. Sharlekar has been examined (RW2), of the Opposite Parties filed counter affidavit and answered the interrogatories served on them.  Ex R1 and R3 were marked for the Opposite Parties as listed in the annexure.  The Complainant produced notes of arguments.

4. In view of the above said facts, the points now that arise for our consideration in this case are as under                                           

1. Whether the Complainant proves that the Chevrolet Car purchased by him from the Opposite Parties on 30.01.2010 proved to be defective?               
2. Whether the Complainant proves that the Opposite Parties have committed deficiency in service?
3. If so, whether the Complainant is entitled for the reliefs claimed?
4. What order?

We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:                                             

                       Point No. (i): Affirmative.

                       Point No. (ii) to (iv): As per the final order. 

                                                                                              Reasons

5.     Point No. (i) to (iv):

The facts which are admitted is that the complainant purchased the car i.e. Chevrolet Beat bearing Engine No.B12D1155519KC3 bearing Chassis No. MA6BF182AATOO2990 from the Opposite Parties for a sum of Rs. 3,94,990/ (Three Lakhs Ninety Four thousand Nine Hundred Ninety only) on 30.01.2010. 

It is also not in dispute that the vehicle was delivered on 31.01.2010 to the complainant.   Further it is admitted that the vehicle developed leakage in the radiator and the car was brought to the work shop on 1.2.2011 and the new engine was fixed and the vehicle was redelivered on 28.2.2011 i.e. within the warranty period.  Further it is admitted that the vehicle was again had a problem with the gear and the same was attended and brought to the workshop on 4.3.2011, after repair the vehicle was redelivered on 8.3.2011.  It is once again had a problem with the A/C and other problems and the same was attended and rectified by the opposite parties.  

          Now the dispute between the parties before this FORA is that the complainant contended that the vehicle in question purchased on 30.1.2010 by availing financial assistance from Vijaya Bank, Brahmavara Branch, Udupi Taluk and paid sum of Rs. 3,94,990 to the opposite parties and the opposite parties have provided warranty of 3 year or 1,00,000 k.m from the date of delivery.  It is contended that on 1.2.2011 when he was travelling the engine of the said car was seized and the car was towed and after 28 days the vehicle was delivered and the new engine was replaced.  And again after taking delivery within short period the gear of the car was not engaging and once again the car was towed to the work shop, after repair car was delivered on 8.3.2011.  And after delivery again the car was not working and sounds were coming in the front and took to the work shop once again on 17.3.2011 and it was returned on 19.3.2011.  It is contended that there is a manufacturing defect in the above said car and he could not enjoy the car most of the times and he had to send it for repairs every now and then and it became nuisance apart from that he also incurred liability by obtaining a loan and there is no hope of perfect repair of car as the route cause is manufacturing defect and hence he came up with this complaint.

The opposite parties interlia contended that the engine of the vehicle came to a hot on account of engine seizure.  The vehicle had coolant leakage due to radiator puncture causing the engine to overheat, the symptom of engine overheating is well indicated by the glow of coolant warning lamp in the driver compartment which was ignored by the complainant and continued to drive the vehicle leading to engine seizure.  Had the complainant followed the instructions pertaining to in built safety provisions this problem at the first place would not have aroused at all.  The engine was rebuilt without insisting for any charges as the same was under warranty.  It is further contended that complainant plied the vehicle in contravention to the terms of the warranty. Nonfunctioning of A/C, sound emanating from the front and the light problems were pointed out by the complainant were attended by the 3^rd Opposite party and denied the manufacturing defect.

 On perusal of the oral as well as documentary evidence available on record it is admitted fact that the vehicle was developed the above said problems within the warranty period.  No doubt the vehicle was purchased on 30.10.2010 from the opposite parties and the same is manufactured by the 1 & 2 opposite parties. Now the point for consideration is that admittedly the vehicle developed certain problems.   According to the complainant the engine of the vehicle seized and he could not drive and the car towed kept in work shop several times.  But it is pertinent to note that the problems in the above said vehicle were persisting every now and then that is within short span of time.

 However the factual background is that the vehicle developed certain problems on 1.2.2011 and the car was towed to the work shop and after lapse of 28 days that is on 28.2.2011 the car was redelivered to the complainant.  But it could be seen that the complainant was charged Rs. 2,152 as per exhibit C2, C3 & C5.  It is further seen that after the repair of the vehicle on the first occasion the vehicle was redelivered to the complaint but once again on 4.3.2011 the gear of the car was not engaging and again towed to the workshop and after the repair it has been redelivered on 8.3.2011.  Once again the car was had other problem with regard to the A/C and also sounds in front of the car and again took the car to the workshop on 17.3.2011 and it was returned to the complaint on 19.3.2011.  The above defects were contended by the opposite parties that the vehicle had a coolant leakage in the radiator of the vehicle and even though indicator showed the same the complainant failed to follow the indication and continue to drive the vehicle leading to engine seizure.

 However, we have examined entire material on record and after giving thoughtful consideration of the arguments, the facts make it very clear that within the warranty period the vehicle developed problem not one time but 3 times with the major problems like replacing engine or rebuilt the engine etc., etc.    Why the engine was rebuilt and what was the exact problem caused to replace the major component like engine of the vehicle is not forthcoming in this case.  The service engineer who had attended the problem of the vehicle should have drawn a report why the engine is rebuilt within the warranty period.  However the complainant came up with the documentary evidence i.e. job service repair order.  It clearly indicate that the engine of the car is seized and again gear was not engaging and again problem with the A/C and sound emanating from the front and the light problems, all these problems developed within short period from the date of purchase proved beyond doubt that the car supplied by the opposite parties has certain defects or else the aforesaid problems would not have occurred often within the warranty period.

 However the opposite parties categorically admitted that the engine was rebuilt/replaced without insisting for any charges but taken charges for the consumable like engine oil, oil filter and sealants.  From the admission it is proved that within short period the engine of the vehicle was damaged which is one of the main component of the vehicle, once the engine is rebuilt by replacing the original engine it is as good as rebore the vehicle.  That is to say it is always a standard size engine built to the vehicle at the time of manufacturing, now it has been removed and the same has been rebuilt that means the major damage caused to the car  .  once the engine is rebuilt naturally the market value of the vehicle will come down. 

In this case the complainant himself produced the evidence that he got repaired from the opposite parties and the opposite parties. No.1 & 2 categorically admitted that the engine is rebuilt when the vehicle is rebuilt there must be a qualified explanation from the service engineer why the engine is rebuilt within the warranty period.  Since the opposite parties admitted that the engine is rebuilt the expert opinion is not necessary and it is safe to accept the documentary evidence and the admission made by the opposite parties in awarding the reliefs as prayed for.  The opposite parties failed to establish that there is no deficiency in service and there is no manufacturing defect.  No doubt the complainant is now possessing the vehicle because he is forced to use the vehicle even though the engine is rebuilt and the gear was replaced.

There is evidence to show that the vehicle in question sold to the complainant was having manufacturing defect and the vehicle was sold to the complainant on 30.1.2010 and the engine was rebuilt on 28.2.2011 and the vehicle was seized on 1.2.2011 that is one year one month we mean to say within the warranty period. 

Under these circumstance we are of the considered opinion that the opposite parties are liable to replace the vehicle by taking back the defective car sold to the complainant.

Generally, if the goods has manufacturing defect is to be borne by the manufacturer.  That would not mean that, the dealer is absolved from joint and several liabilities.  As we know, the manufacturer not deals with the customers directly.  Dealer having received the amount, undertaken free service and rectify defect during the warranty do not escape liability towards the manufacturing defect found in the goods.  As we know, the contract through dealer/service provider, privity of contract is with them.  To ensure execution expeditiously and immediately, if necessary by making the payment/replacement to the complainant initially and then it will be for the dealer to claim reimbursement from the manufacturer. Therefore, the dealer and the manufacturer both are jointly and severally liable for the defects found in the vehicle in this case.

In view of the above discussion, we hereby directed the opposite parties jointly and severally to replace the car i.e Chevrolet Beat with a new car along with fresh warranty by taking back defective car and also pay Rs. 10,000 as a damages to the complainant or in the alternative refund the entire of Rs. 3,94,990/ with interest at the rate of 10 % per annum from the date of purchase and till the date of payment.  Further pay Rs. 3,000 as cost of the litigation expenses to the complainant and payment/compliance shall be made with in the 30 days from the date of receipt of this order.

6.       In the result, we pass the following:  

ORDER

          The complaint is allowed.   The opposite parties are jointly and severally shall replace the car with a new car along with fresh warranty by taking back the defective car and also pay damages of Rs.10,000 to the complainant.

Or

          In the alternative the opposite parties jointly and severally shall refund the sum of Rs. 3,94,990/ (Three Lakhs Ninety Four thousand Nine hundred Ninety only)  along with interest at the rate of 10% from the date of purchase till the date of payment.

 Apart from the above, also pay Rs.3,000(Rupees Three thousand only) as cost of the litigation expenses and compliance/ payment  shall be made within 30 days from the date of receipt of this order.

On failure to pay the above said amount within stipulated time, the Opposite Parties are liable to pay 10% interest from the date of failure till the date of payment. 

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the   31^st day of August 2016.)                          

          PRESIDENT                                                          MEMBER

 (SMT. ASHA SHETTY)                                       (SMT. LAVANYA M.RAI)

 D.K. District Consumer Forum                                 D.K. District Consumer Forum

         Mangalore.                                                                        Mangalore.                                                                  

                                   ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Naveen Chandra Shetty

Documents marked on behalf of the Complainant:

Ex C1  30.01.2010: Tax invoice for having purchased the car.

Ex C2  01.02.2011: Repair order.

Ex C3  28.02.2011: Invoice.

Ex C4  28.02.2011: Invoice.

Ex C5  28.02.2011: Invoice.

Ex C6  05.03.2011: Repair order.

Ex C7  04.03.2011: Vehicle collection form.

Ex C8  08.03.2011: Retail invoice

Ex C9  17.03.2011: Repair order.

Ex C10  19.03.2011 Retail Invoice.

Ex C11  Owner s Manual.

Ex C12  copy of the Letter written to opposite parties.

Ex C13  Postal Receipts.

Ex C14, C15 & C16  Postal Acknowledgements in 3 Nos.

Witnesses examined on behalf of the Opposite Parties:

RW1  G. Padmanabhan on behalf of opposite Parties No. 1 & 2

RW2  Mr. Vinod M. Sharlekar on behalf of  Opposite party No.3.

Documents marked on behalf of the Opposite Parties:

Ex R1  28.02.2013      : Authorization letter issued by the Deponent s employer                                                     

Ex R2  08.02.2010 to  19.01.2013      : History of the impugned vehicle.               

Ex R3  Owner s Manual.

Dated:  31 .08.2016                         PRESIDENT