JUDGMENT Per Justice Sham Sunder,President The facts, in brief, are that that the complainant company purchased an Audi car bearing Model No.A83,OTDI, Chassis No.WAUZF94E3AN00086, Engine NO.ASB162479 and Registration No.CH-01-AA-6412, against total price of Rs.71 Lacs, from OP NO.3 vide invoice No.09-10/V0128 dated 14.1.2010, for the use of Chairman and other Directors of Timber Trail,having its registered office, and business place at Parwanoo, District Solan. The said car had hardly covered 7500 Kms, when it started giving the problem. When switched on, or during driving, the Air bag alarm started giving signal “Air bags not working”. The continuous indication of alarm of airbags, thus, caused a great inconvenience to the Chairman of the complainant, who felt insecure while travelling in the car. The complainant immediately approached the dealer i.e. OP NO.3 and also brought the aforesaid defects to its notice, with a request to rectify the same. Instead of removing the defects, the concerned representative of OP NO.3 told the complainant, that in the first instance, he will inform OP NO.1 about the said defects, and only after receiving reply and feed back from it, the said defects would be rectified. 2. On 22.6.2010, the day when the said car was taken to the workshop of OP NO.3, the Chairman of the complainant was to leave for Delhi for an urgent business assignment. Therefore, he requested the representative of OP NO.3, to make an alternative arrangement, by providing any other car, so that he could reach Delhi, well in time, to attend the business assignment, but attitude of its representative was indifferent and non-cooperative. On account of indifferent and non-cooperative attitude of the representative of OP NO.3, the Chairman of the complainant felt embarrassment and humiliation. For the whole day, the car remained in the workshop of OP NO.3. In these circumstances, the Chairman of the complainant had to cancel the appointment for the said day and left for Delhi, on the next day, by train, as no other car owned by the complainant was available. The car, in question, was delivered on the next day. It was, however, assured that the defect had been removed. It was further stated that, to the utter surprise of the complainant, the same problem again occurred. Not only that, the entire electronic system also collapsed. The computerized system installed in the said car also stopped functioning as it suffered from some virus. A complaint in that regard was again made to OP NO.3, and after keeping the car for two days, the same was given back to the complainant. It was further stated that the same defects, still persisted in the car. It was further stated that, thus, it was quite unsafe to drive or travel in the said car and the same was lying parked. It was further stated that the said car was sold to the complainant, by the OPs, knowing fully well, that the same was defective. It was further stated that on account of a conspiracy hatched by the OPs, the complainant was induced to deliver them a handsome amount of Rs.71 Lacs, for the purchase of the car. It was further stated that the said fact was brought to the notice of the OPs, through e-mail dated 25.6.2010. A legal notice dated 2.7.2010 was sent through registered post on 3.7.2010, to the OPs, but no reply was received. It was further stated that the OPs, were deficient in rendering service, as also indulged into unfair trade practice. Ultimately, the instant complaint, was field by the complainant claiming the reliefs that the car in question be got replaced from the OPs; or in the alternative, the OPs be directed to refund the amount of Rs.71 Lacs, price of the car, paid by the complainant, with interest @ 12% p.a.; that the OPs be directed to pay compensation to the tune of Rs.10 Lacs for mental agony and physical stress caused to the Chairman of the complainant, as also financial loss suffered by it; and that the OPs be directed to pay Rs.55,000/- as costs of litigation. 3. In the reply, OP NO.3 pleaded that the complaint was not maintainable as the complainant did not fall within the definition of ‘consumer’ as the vehicle was purchased and used by the Chairman of the same for commercial purpose. It was admitted that the car, in question, was purchased by the complainant, from OP NO.3, after paying the price of Rs.71 lacs. It was stated that on 22.6.2010, a representative of the complainant approached OP NO.3 with the problem that there was a signal in the vehicle indicating some malfunctioning with the operating system of airbags. It was further stated that the representatives of OP NO.3 checked the vehicle and duly informed Audi India and it was found that there was sporadic error in the operating system of the airbags, which was duly rectified. The Repair Order and the Invoice with regard to the work done are Annexures R-3/1 and R-3/2 respectively. It was further stated that the representative of the complainant duly checked the vehicle and after taking a test drive, he took the delivery of the vehicle, after signing a satisfaction note dated 22.6.2010 Annexure R/3-3. It was further stated that the representative of the complainant again brought the vehicle on 28.06.2010 to the service station of OP No.3, with the minor problem that the Multi Media Interface was not working. It was further stated that OP NO.3 even provided a courtesy car vide courtesy car Agreement Annexure R3/5, in order to avoid any discomfort, to the Chairman of the complainant. The defect, in Multi Media Interface, in the vehicle of the complainant, was duly rectified by OP NO.3, vide repair order dated 28.6.2010, Annexure R/3-4. It was further stated that there was no manufacturing defect in the car. It was further stated that whatever defects, were in the car, when the same was brought to the workshop of OP NO.3, on the aforesaid dates, the same were duly rectified to the satisfaction of the complainant. The remaining allegations were denied, being wrong. 4. The names of OPs NO.1 & 2 were ordered to be deleted, vide order dated 10.11.2010, passed by this Commission. 5. In support of its case, the complainant, produced evidence by way of affidavit of Sh.Satish Gour, Deputy General Manager, who reiterated the allegations contained in the complaint. C-1 is the Resolution, passed by the Complainant Company, authorizing Sh.Satish Gour,its D.G.M. to appear and pursue the matter. C-2 is the Retail Invoice showing the price of the car as Rs.71,00,000/-. C-3 is copy of the E.mail, which was sent by the complainant to OP NO.3. C-4 is copy of the Legal Notice, sent by the complainant. C-5 is copy of the postal receipt. 6. OP NO.3 , in rebuttal, submitted an affidavit of Sh.V.K.Jain, Vice President, Jaycee Automobiles Pvt. Ltd., to prove the averments contained in the reply. R/3-1, R/3-2, R/3-3, R/3-4, R/3-5 and R/3-6 are the documents proved by Sh.V.K.Jain. 7. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 8. The Counsel for the complainant, submitted that the complainant purchased the car for a very hefty amount of Rs.71 Lacs, with a view to ensure that its Chairman, feels comfortable while travelling in the same for attending to the business meetings or other work assignments. He further submitted that there were manufacturing defects, in the car, which were never removed by OP NO.3, to the satisfaction of the complainant. He further submitted that, on account of this reason, the Chairman of the complainant had to suffer a lot financially as well as mentally and physically. He further submitted that the defects which were pointed out, by the representative of the complainant, when the car, in question, was taken to the workshop of OP NO.3, were never completely rectified, as a result whereof, the car, in question, had become a junk and lying in the premises of the complainant. He further submitted that OP NO.3, thus, was deficient in rendering service, as also indulged into unfair trade practice. He further submitted that since the manufacturing defect referred to above, were not completely rectified, the complainant was either entitled to the replacement of car, or refund of the price thereof alongwith compensation and costs of litigation. 9. On the other hand, the Counsel for OP No.3, submitted that there was no manufacturing defect, in the car. She further submitted that whatever defects were pointed out by the representative of the complainant, when the car was brought to the workshop, the same were duly rectified, to his satisfaction. She further submitted that after making a test drive, the representative of the complainant, signed the satisfaction note. She further submitted that on one occasion, when the car remained in the workshop of OP NO.3 for more than a day , even a courtesy was extended by arranging an alternative for the complainant, so that no discomfort is caused to its Chairman and an agreement in respect thereof, was executed between the parties. She further submitted that no expert evidence was produced by the complainant to prove that there was a manufacturing defect, in the car, and, as such, he was not entitled to the replacement of the same, or in the alternative, refund of the price thereof. She further submitted that the OP was neither deficient in rendering service to the complainant, nor indulged into unfair trade practice. 10. The following questions/points arise for determination, in the instant complaint ; (i) Whether the Complainant falls within the definition of ‘Consumer’ as per the provisions of Section -2 of the Consumer Protection Act,1986. (ii) Whether the complainant, succeeded in proving that there was a manufacturing defect in the car ? (iii) Whether OP NO.3 rectified the defects, pointed out, in the car, from time to time, by the complainant, to its satisfaction ? (iv)Whether OP NO.3 was deficient, in rendering the service, to the complainant ? (v)Whether the complainant is entitled to the reliefs claimed by it, in the complaint? 11. The first question that arises, for determination, is, as to whether, the complainant falls within the definition of ‘Consumer’ or not. The Complainant is a Company duly incorporated under the Companies Act. The car, in question, was purchased by the complainant, for the personal use of its Chairman and Directors for the purpose of attending to their various assignments. The car was, thus, purchased by the complainant Company for the use of its Chairman and Directors for attending to their business activities for earning their livelihood. It was not that the complainant company was using the car, in question, as taxi for commercial purpose. Under these circumstances, by no stretch of imagination, it could be said that the complainant did not fall within the definition of ‘Consumer’ as defined under Section-2 of the Consumer Protection Act. It is, therefore, held that the complainant falls within the definition of ‘Consumer’. This point is,thus, decided in favour of the complainant, and against the OP. 12. The questions/points, depicted at nos.(ii) (iii) and (iv) of para 10 of the judgment, being interconnected, are taken up together, for discussion. The first defect, which was pointed out, was that when switched on or during driving, the airbags alarm, started giving signal “Air bags not working”. On 22.6.2010, the representative of the complainant approached OP NO.3 during the warranty period. R/3-1 is copy of the repair order. Windows/Glazing, Wiper Blades, Lights, Exhaust System, Underbody, Engine Compartment, oil level, Coolant, Windshield washer, Brakes and Axle were found to be OK. The bonnet and front bumper were found scratched when the car was brought to the workshop. The defect, in the signal of the vehicle indicating malfunctioning of airbags, was checked, and the same was rectified, as is evident from R/3-2, copy of the Tax Invoice. R/3-3 is a copy of the satisfaction note, which was signed by the representative of the complainant/customer. It was, in clear-cut terms recited, in this document, that the representative had taken a test drive of the vehicle, and he was satisfied with its performance, after repair. He also accepted delivery of the car. It was further recorded in the satisfaction note that the representative had received all the replaced parts including accessories (if any) of the vehicle. This document dated 22.6.2010 was also signed by the Service Manager of OP NO.3. R/3-4 is the repair order dated 28.6.2010. The complainant reported that MMI was not working. The said defect was rectified, as is evident from R/3-4, copy of the repair order. Since the car remained in the workshop for the purpose of rectification of the defect, a Courtesy Car was given to the Chairman of the Complainant and a Courtesy Car Agreement R/3-5dated 28.6.2010, was executed, which was duly signed by the representative of the complainant. OP No.3 even sent e.mail R/3-6 on 8.12.2010, but the same was not replied to by the complainant. It is, thus, evident that as and when the defects were notified by the representative of the complainant, by taking the car to the workshop of OP NO3, the same were duly rectified, with a view to avoid any discomfort to the Chairman of the complainant. No expert evidence, was produced, by the complainant, that there was any manufacturing defect, in the car. Mere allegations, in the complaint, to the effect, that the car was suffering from inherent manufacturing defects, without any proof thereof, through evidence by way of affidavit of an expert, did not mean anything. Even the plea of the complainant that the car is lying parked, in the shape of junk is belied from Anenxures R3/2 and R3/4. It is evident from R3/2, tax invoice dated 22.6.2010 that when the car, in question, was brought to the workshop, its meter reading was 7825 Kms. It is further evident from R3/4, repair order dated 28.6.2010 that, when the car, in question, was again brought to the workshop, its meter reading was 7931 Kms. Had the car been not driven from 22.6.10 to 28.6.10, its meter reading would have remained static, instead of registering increase of more than one hundred kilometers, within 6 days. It is, therefore, held that since the complainant failed to prove that there was any manufacturing defect, in the car, and the defects which were pointed out by its representative, from time to time, were duly rectified by OP No.3, it could not be said that OP NO.3, in any way, was deficient in rendering service, to the complainant, or indulged into unfair trade practice. These points/questions are decided against the complainant, and in favour of OP No.3. 13. The next question, that arises for determination, is, as to whether, the complainant is entitled to the reliefs claimed by it. Since, it has been held that there was no manufacturing defect, in the car, and, whatever defects, were pointed out therein, by the representative of the complainant, were rectified by the representatives of OP NO.3, the complainant, in our considered opinion, is not at all entitled either to the replacement of car, or in the alternative to the refund of price thereof, or any other relief claimed in the complaint. 14. For the reasons, recorded above, the complaint, being devoid of merit, must fail, and the same is dismissed with costs, quantified at Rs.5000/-. 15. Certified Copies of this order be sent to the parties, free of charge.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
