Haryana

Panchkula

CC/113/2014

POOJA RANI - Complainant(s)

Versus

BERKELEY AUTOMOBILE LTD. - Opp.Party(s)

P.S BEDI

22 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.

                                                                  

Consumer Complaint No	:	113 of 2014
Date of Institution	:	03.07.2014
Date of Decision	:	22.04.2015

                                                                                          

Mrs Pooja Rani w/o Sh.Mohinder Kumar, R/o House No.17, New Pipliwala Town, Manimajra, Chandigarh.

                                                                                          ….Complainant

Versus

 

1. Berkeley Automobiles Limited, Plot No.87, Industrial Area, Phase-1, Panchkula through its proprietor/partner.
2. Modern Automobiles, Plot No.318, Industrial Area, Phase II, Panchkula, through its proprietor/partner.
3. Maruti Suzuki India Ltd., 1 Nelson Mandela Road, Vasant Kunj, New Delhi-110070, through its director.

                                                                         ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Coram:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.Anil Sharma, Member.

 

For the Parties:     Mr.P.S.Bedi, Adv., for the complainant. 

                             Mr.O.P.Sharma, L.O., for the Op No.1.

                             Mr.Amardeep Sharma, Adv., for the Op No.2.

                             None for the Op No.3.

 

ORDER

(Anita Kapoor, Member)

 

1. The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that she purchased a Maruti Swift-ZDI bearing registration No.CH-01-AR-0041 from the Op No.1 on 19.12.2012 vide invoice No.VSL12001407 for Rs.6,89,430/- but the possession of the car was taken on 20.12.2012. On 28.07.2013, the husband of the complainant took the car to Leh from Chandigarh, when he reached near Srinagar, the engine of the car suddenly stopped. The husband of the complainant had to stay at village Batod due to the problem in car. Somehow, the husband of the complainant reached at his residence at Leh. After some days i.e. on 03.08.2013, the husband of the complainant took the car at workshop which was approximately 1.5 kms and during the run, the car stopped three times. The husband of the complainant who is an engineer was also not able to understand the problem in car and he called the agent who suggested him to call at customer care. The husband of the complainant called at customer care and they advised him to take the car to the Drook Auto Service Station. As per their advice, the husband of the complainant took the car at Drook Auto Service Station where the manager told him that their workman was on holiday of 10 to 15 days. Thereafter, on 14.08.2013, the husband of the complainant again visited at service station where mechanic checked the car thoroughly and told that diesel filter of the car was required to be replaced which was not available in Leh and it had to be arranged from Chandigarh. The mechanic further told that the rest of the checking would be done by the main mechanic as he has not turned back from holidays. Thereafter, on 21.08.2013, the husband of the complainant again visited the service station where the car was checked on computer and after checking, the main mechanic advised him to take the car to Srinagar or to place from where he bought the car. The husband of the complainant again called at toll free number on 23.08.2013 and lodged the complaint with the customer care. On 24.08.2013, the husband of the complainant again called at customer care to know the status of his complaint but they asked him to wait. On 25.08.2013, the husband of the complainant sent the mail to Op No.3 and also a reminder dated 29.08.2013 but to no avail. Somehow, the husband of the complainant arranged the contact number of Sh.Amrinder Gill who sat in the Regional Office and called him who asked to contact Sh.Ranbir Kalra who was working as J & K service manager. The husband of the complainant contacted Sh.Ranbir Karla and told him about his problem. On 31.08.2013, Shaquat from Srinagar made a call to the husband of the complainant and asked him to wait for one week but after one week nobody called him back. On 11.09.2013, the husband of the complainant again called at toll free number and came to know that his complaint was closed without any work. On 12.09.2013, the husband of the complainant visited at Chandigarh from Leh and visited the Regional office to enquire about his complaint where he met Sh.Ranbir Kalra and after discussion, they told him to take the car for repairs. On 16.09.2013, the husband of the complainant took the car at Leh and after reaching, he contacted Sh.Ranbir Kalra who sent a mechanic on 19.09.2013. The mechanic checked the car with computer and told him that they had removed all the errors and advised to run the car. Thereafter, the husband of the complainant ran the car approximately 200 kms but the problem was still persisted. The husband of the complainant contacted the mechanic who asked him to bring the car at Srinagar. As per their advice, the husband of the complainant took the car at Srinagar to the service station of Op No.3 where the mechanics cleaned the diesel tank and filter was changed thereafter, husband of the complainant parked the car at his friend’s house. After some days, husband of the complainant decided to visit at Chandigarh and took his car from his friend’s house but when he reached near Udhampur, the car stopped in between and started giving trouble. On 23.10.2013, the complainant alongwith his husband visited to Shimla to attend the function but when they reached near Parwanoo by pass, the engine of the car again stopped and it did not started even after a gap of 2 hours also and they were forced to bring the car back to Chandigarh by tohchen. The husband of the complainant visited the Op No.2 for repair of car and the mechanic of Op No.2 took the 4 snap shots thereafter, the head mechanic told that there was a manufacturing defect in the car and most of the cars of that make manufactured before Oct. 2013 were facing that kind of problem. Thereafter, he got the car heated and did the ECM programming and assured the complainant that now the problem would not arise but the problem was not rectified and it again started giving problem. The complainant took the car to Op No.2 who asked the complainant that the cylinder head/engine head was required to be replaced i.e. half of the engine was required to be replaced but the complainant refused to replace the same. The complainant alleging unfair trade practice and deficiency in service on the part of Ops. Hence, this complaint.
2. The Op No.1 appeared before this Forum and filed its written statement by taking some preliminary objections & submitted that the Op No.1 had resigned the dealerships of Op No.3 in the beginnings of year 2013 and now it was not the dealer of Op No.3. It is submitted that after the purchase of car, the complainant never approached the Op No.1 or communicated in any manner or regarding the vehicle. It is denied that the complainant ever called the Op No.1 or the Op No.1 suggested him to call the customer care. It is submitted that the complainant has not impleaded the Drook Auto Service Station as party as the vehicle was attended by it. It is denied that the car in question had manufacturing defect or the cars manufactured before October, 2013 were facing any kind of problem. It is submitted that as per complainant, her vehicle faced problem for the first time on 28.07.2013 whereas he had purchased the vehicle on 19.12.2012 i.e. after more than 7 months of its purchase. It is submitted that if the vehicle has manufacturing defect, the problem would have surface immediately after purchase. Thus, there is no deficiency in service on the part of OP No.1 and prayed for dismissal of the complaint with cost.
3. The Op no.2 appeared before this Forum and filed its written statement by taking some preliminary objections & submitted that the vehicle was purchased by the complainant on 19.12.2012 vide bearing No.CH-01-AR-0041 Swift ZDI from the Op No.1. It is submitted that first time, the vehicle was serviced on 02.01.2013 and second service was done on 28.02.2013 from OP No.1 thereafter, they were running repairs on 21.09.2013 which was done by Jamkesh Vehicleades Pvt. Ltd. (Kashmir). It is submitted that the engine started giving problem for the first time on 21.09.2013 when the vehicle was at Laddakh. It is submitted that the complainant took the vehicle to the Op No.1 for the first time on 23.10.2013 with the problem of engine knocking/misfiring and the vehicle was checked. It is submitted that the vehicle was kept under observation, as at the time of running of the vehicle between 80-90 kmph and no such knocking/missing was found at that time. It is submitted that third service was done on 12.11.2013 by the Op No.3 and the same was done an ECM (Engine Control Module) to rectify the reason for knocking/misfiring of the engine which was done by Op No.3 and the Territory Service Manager (TSM) Mr.Vikas Saini who verified and checked the problem with the vehicle and the customer signed the job satisfactory note performed by the Op No.2. It is submitted that the ECM was done by the MSIL executive and the purpose of the ECM was to rectify the problem of the vehicle which could be verified by computing systems. It is submitted that the complainant went to caretaker, Panchkula on 02.12.2013 and made a complaint of low pickup at the speed of 80 to 100 kms. The complainant was informed regarding the related job to be done on the vehicle but the complainant refused to got the job done. It is submitted that the caretaker agency has not been made a party where the vehicle was last visited and no reasons has been given for not making the caretaker as necessary party. It is submitted that the vehicle was purchased from Op No.1 and first two services were also done from Op No.1 but the Op No.2 done only third service and the ECM programming by the TSM of the MSIL. It is submitted that the work done by the Op No.2 was on the principal to principal basis and the role of Op No.2 was limited to the sale and service the vehicle as per manufacturer standards and in case there was any manufacturing defect, the same has to be rectified as per the company policies issued by MSIL from time to time. It is submitted that the policies & warranty clauses were framed by the principal manufacturer and the Op No.2 has no role except to service the vehicle as per the warrant terms and conditions. It is submitted that the complainant has taken extended warranty i.e. for a period of 4 years or 80000 kms wherever is earlier by paying extra amount and during that period, if any part of the vehicle was found to be having a manufacturing defect, the same should be replaced/rectified for free of costs to the complainant. It is submitted that the vehicle of the complainant was not a only vehicle which was facing the issue of engine misfiring there were many others and their vehicle head assembly has been replaced for free of cost and the same would be replaced for complainant free of cost. It is submitted that no value of the car should be lost if the head assembly is replaced and as per the warranty policy of the manufacturer, the vehicle would be covered for any kind of rectification, shortcoming during the warranty period and the complainant should not be burdened with any kind of cost for replacement of the parts. It is submitted that the Op No.2 was willing to rectify the vehicle as per the warranty terms and conditions stipulated by MSIL and per the present situation of the vehicle, the head assembly should be replaced for free of costs without any burden upon the complainant. Thus, there is no deficiency in service on the part of OP No.2 and prayed for dismissal of the complaint with cost.
4. The Op No.3 appeared before this Forum and filed its written statement by taking some preliminary objections & submitted that the liability of the Op No.3 being the manufacturer of the vehicle is limited to prove warranty benefits as per clause-3 of the warranty policy as set out in the Owner’s Manual and Service Booklet. It is submitted that the Op No.1 is an erstwhile dealer of Op No.3. It is submitted that the relationship between the Op No.3 and the dealer is that of Principal to Principal basis only as per the dealership agreement executed between the OPs. It is submitted that as per clause 5 of the dealership agreement, the dealer should not be deemed to be the agent or representative for any purpose and the dealer should not describe or represent itself. It is submitted that the complainant bought the vehicle in question from the Op No.1 under a contract for sale of Goods as executed between the complainant and the Op No.1. It is submitted that the complainant availed the 1^st and 2^nd routine maintenance services on 02.01.2013 & 28.02.2013 at 1254 and 4758 kms and the complainant did not point out any defect relate to engine. It is submitted that the complainant was negligent in obtaining 1^st service which would have been due on completion of 1000 kms. It is submitted that the Op No.3 being the manufacturer of car stands warranty for a period of 24 months and 40,000 kms whichever is earlier. It is submitted that the terms and conditions are part and parcel of sale and the complainant is bind from them. It is submitted that all automobiles manufacturer gave a warranty to its products. It is submitted that the vehicle in question was inspected thoroughly on 21.09.2013 and 23.10.2013 when brought to the workshop for obtaining warranty service and the service engineer detected use of adulterated fuel affecting the performance of vehicle. It is submitted that the adulterated fuel affects the oil tank and the oil filter of the vehicle and the diesel tank needed complete cleaning in order to remove the bad contents in fuel tank. It is submitted that the oil filter was also replaced with a new one on two occasions and the warranty did not apply in such a situation, however, as a matter of goodwill and good gesture, the services were provded and offered replacement of the cylinder head in order to arrest the alleged problem but the complainant refused to accept the same. It is submitted that the problem arose due to use of adulterated fuel, the same did not fall under warranty as per clause 4(e) of warranty agreement. It is submitted that the vehicle in question has undergone stringent tests and only then FCOK (Final Check OK) was given by the Op No.3 before dispatching the vehicle to its dealers. It is submitted that the Op No.3 has delivered the vehicle a perfect road worthy vehicle. Thus, there is no deficiency in service on the part of OP No.3 and prayed for dismissal of the complaint with cost.
5. In order to prove the case, the counsel for the complainant has tendered evidence by way of affidavit Annexure C-A & C- alongwith documents Annexure C-1 to C-10 and closed the evidence. On the other hand, the counsel for the Op No.1 has tendered evidence by way of affidavit Annexure OP1/A and closed the evidence. The counsel for the OP No.2 has also tendered evidence by way of affidavit Annexure R2/A alongwith documents Annexure R2/1 to R2/4 and closed the evidence. Counsel for the Op No.3 has tendered the evidence by way of affidavit Annexure R3/A alongwith documents Annexure R3/1 and R3/2 and closed the evidence.
6. We have heard learned counsel for the parties and appraised the material on record carefully.
7. It may be noticed, at the very outset, that it is beyond the pale of controversy that OP No.1 is no longer an authorized dealer of OP No.3, though he was indeed the authorized dealer on the date the vehicle under reference had been sold by it to the complainant herein. There is also no controversy about the fact that OP No.2 had a very restricted role to play inasmuchas it had only done third free service of that vehicle.
8. A perusal of the pleadings made by the parties indicates that the controversy herein boils down to whether the vehicle under reference had a manufacturing defect or not.
9. The cue to the controversy can be safely found in the report (marked as Annexure ‘AA’) given by a three member team of the PEC University of Technology, Chandigarh, to which the matter had been referred by this Forum vide order dated November 24, 2014. It may be noticed that the order aforementioned has been allowed by the OPs to attain finality for want of a challenge thereto. The team consisted of Dr. V.P. Singh, Associate Professor, Dr. Sushant Samir, Associate Professor, and Sh. Gopal Dass, W.I., all of Mechanical Engineering Department, PEC, University of Technology, Chandigarh. In the course of the report, they pointedly and categorically opined that the defect found in the running of the vehicle could be attributed to be a manufacturing defect. The relevant part of the observations is extracted hereunder:-

“The vehicle in question was inspected and test driven for about 44 kms including outside city limits. The committee is of the opinion that there is severe problem of pick up and missing of the vehicle once the vehicle attains the speed of 80 kms/hour and if the problem of missing and pick up is from the beginning (as informed by the husband of the complainant), the problem may be attributed to the manufacturing defect”.

10. Insofaras OP No.3 is concerned, it challenge the validity of the report by the committee on an averment that it is not supported by an affidavit by the members of the committee and further that the report is based upon “merely on the basis of visual examination”.
11. Both the premises of challenge deserve to be negated. The members of the committee submitted a report under their signatures. They are responsible members of faculty of Punjab Engineering College, a prestigious institution all over India. The mere fact that the committee report is not supported by an affidavit does not affect the validity thereof, particularly when they had recorded in the report itself that the vehicle was driven for a distance of about 44 kms. The report is, thus, not based on mere visual examination as averred by OP No.3.
12. It is also the plea of OP No.3 that the report cannot be accepted because none from the field of automobile engineering was a member of the committee.
13. That plea also deserves to be negated. Though there can be no dispute that automobile engineering is an independent facet of engineering, it too cannot be denied that two members of the committee were from the Mechanical Engineering Department and they had no difficulty in recording a precise finding.
14. It is common ground that the vehicle under reference had been purchased on 19.12.2012. The manufacturer is highly reputed for the quality of its vehicles. There is no controversy that the entire manufacturing process is computerized and the process is constantly supervised by highly qualified engineers in the relevant field. In that view of things, it is not expected that the defect found in the running would appear in a vehicle manufactured by OP No.3 unless, of course, if the vehicle has a manufacturing defect. If it were not a manufacturing defect, it would not have occurred repeatedly and would have got rectified when the vehicle was taken care of a number of times at the authorized service stations. There is, thus, no escape from the fact that the vehicle has a manufacturing defect.
15. In view of the facts recorded in the course of para7 of this judgment, no liability for the deficiency in service can be fastened upon OPs No.1 and 2.
16. While, thus, allowing the complaint and indicting OP No.3 on a charge of deficiency in service due to the existence of a manufacturing defect in the vehicle manufactured by it, we would order that: -

1. OP No.3 shall either provide a brand new car of the same make to the petitioner without any payment being made by the latter therefore or OP No.3 may get the manufacturing defect removed at its own cost and to the satisfaction of the complainant. In case OP No.3 opts for the latter course of action, the removal of the manufacturing defect shall be certified by an independent team of experts appointed by and with the consent of the complainant and OP No.3.
2. The OP No.3 shall, in any eventuality, pay a sum of Rs.75,000/- to the complainant for the mental agony, harassment and trauma suffered by the latter and that amount shall include the amount of Rs.22,472/- which was charged by PEC for expert opinion.
3. OP No.3 shall pay a sum of Rs.5,000/- as the cost of litigation to the complainant.

17. OP No.3 shall comply with this order within a period of one month from the date its communication to it comes about. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 

 

Announced

22.04.2015  ANIL SHARMA         ANITA KAPOOR         DHARAM PAL

                    MEMBER                 MEMBER                    PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.                              

 

                                            

                                                          ANITA KAPOOR                                                                                               MEMBER