BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No.610 of 2014

                                 Date of institution:          10.10.2014

                                              Date of Decision:            10.09.2015

Tarsem Lal son of Parkash Chand, Opposite SBOP, Bassi Road, Sirhind, Tehsil and District Fatehgarh Sahib.

                                     ……..Complainant

                                        Versus

1.     Bhagat Cars (P) Ltd., # 1 Dr. Jagdish Singh Marg, The Mall, Patiala.

2.     Nissan Motor India Pvt. Ltd., Plot No.1a, SIPCOT, Industrial Park, Mattur Post, Oragadam, Sriperumbdur, Taluk District Kancheepuram 602105, Tamilnadu.

                                                                ………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Mrs. R.K. Aulakh, Member.

Present:    Shri Gitish Bhardwaj, counsel for the complainant.

Shri H.S. Bedi, counsel for OP No.1.

Shri Vikas Sharma, counsel for OP No.2.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:

(a)    return the vehicle to him after changing its engine.

(b)    pay him Rs.2,11,000/- for mental agony, harassment and unwanted litigation.

(c)    pay him Rs.40,000/- for hiring taxi for his personal needs.

(d)    pay him Rs.23,450/- as insurance premium with interest @ 6% per annum from the dates of its payment.

(e)    pay him Rs.10,000/- per month till delivery of the vehicle to the complainant.

                The complainant earlier filed a complaint before the ld. District Forum, Fatehgarh Sahib in which the Ops moved an application for dismissal of the complaint for want of territorial jurisdiction. The application was dismissed by ld. District Forum, Fatehgarh Sahib against which the Ops preferred revision petition before the Hon’ble State Commission which allowed the revision petition. Accordingly, the present complaint has been filed by the complainants before this Forum.

                The complainant purchased NISSAN MICRA Car Model  MICRA XV from OP No.1 vide invoice dated 04.10.2011 for sale consideration of Rs.5,79,299/- for his personal use. At the time of selling the vehicle, OP No.1 assured to provide best services in case of default and that as per norms of OP No.2, complainant was told by OP No.1 that the engine of the vehicle is under guarantee within 60,000 KMs or for a period of two years, whichever is earlier. The vehicle run about 65 kms. daily. In April, 2012 the chamber of the vehicle gave some leakage problem. On the complaint of complainant, OP No.1 took the vehicle to its showroom and instead of changing the chamber, temporarily repaired it by pasting M-seal over leakage. However, on repeated requests of the complainant, OP No.1 changed the chamber of the vehicle in August, 2012. Again in November, 2012 the complainant heard voice in the vehicle when he was on way to Chandigarh from his house. The complainant contacted OP No.1 and on its suggestion he made a call to helpline and the vehicle was towed to service center of OP No.1 and since then the vehicle is with OP No.1. Auto engineers of OP No.1 found that the engine of the vehicle is giving some problems.  OP No.1 told the complainant that the engine of the vehicle is to be changed and assured the complainant to take back the vehicle within one month after changing its engine.  OP No.1 also obtained signatures of the complainant on some forms. In the absence of the vehicle the complainant suffered monetary loss of more than Rs.40,000/- as he had to hire taxi for his domestic needs. Till today the OP No.1 has not changed the engine of the vehicle. The complainant also got issued a legal notice to the OPs on 29.01.2013 to return his vehicle but till date the OPs have not returned the vehicle to the complainant after changing its engine.  The complainant also got insured his car from 04.10.2012 to 03.10.2014 vide two policies and the complainant had suffered monetary loss of premium of insurance of Rs.23,450/-  which the OPs are liable to pay to him.  Thus with these allegations, the complainant has filed the present complaint.

2.             Upon notice, the OPs appeared and filed separate written versions.  OP No.1 in the preliminary objections has pleaded that it has been unnecessary dragged in the present litigation and the complainant has not disclosed how the cause of action has arisen against the OP No.1. The complainant brought the vehicle to OP No.1 on 04.05.2012 after driving the vehicle about 17859 KM with the damaged chamber due to accident and the oil from pan chamber was leaking. Insurance company of the vehicle was informed who appointed Shri Hans Raj Gautam as surveyor and after inspection he suggested for replacement of oil pan chamber which has been admitted by the complainant. The complainant was asked to leave his vehicle  for 2-3 days for replacement of the chamber but the complainant insisted to repair the vehicle on the same day. It was specifically informed to the complainant that if he will not replace the oil pan chamber and keep on continuing to use the vehicle with a damaged/repaired oil pan chamber, it will cause damage to the engine of the vehicle but the complainant remained adamant to his stand of not replacing the oil pan chamber. As per instructions of the complainant, the oil pan chamber was repaired. The complainant got his vehicle serviced on 05.06.2012 for second time free of cost after driving it for 20820 KM.  Even at that time the complainant had not got replaced its oil pan chamber. The complainant brought the vehicle on 14.09.2012 for accident repair after driving it for 30441 KMs as the bumper fender and oil pan chamber was damaged which were replaced. On 24.11.2012 the complainant again brought the vehicle with the complaint of noise in the engine and wanted to get his vehicle repaired under warranty. The complainant was informed that warranty is always honoured by the manufacturer i.e. OP No.2 and without permission of OP No.2 the engine would not be opened and repaired.  The matter was brought to the notice of OP No.2 by OP No.1 on 03.12.2012 through e-mail but OP No.2 had rejected the warranty. The complainant was informed about the status of warranty repair and he was further informed that if he wants to get the engine repaired, he has to bear the entire cost but till today the complainant had not given his consent for repair or replacement of the engine nr he had removed his vehicle from the premises of OP No.1. As such the complainant is liable to pay Rs.250/- per day as parking charges to OP No.1 and to escape from his this liability, the complainant has filed the present complaint.  On merits, denying the averments of the complainant in the complaint, the OP No.1 has sought dismissal of the complaint.

3.             OP No.2 in its reply has pleaded in the preliminary objections that the complaint is false, malicious and incorrect and is beyond limitation as the vehicle in question was purchased in 2011 and the complaint has been filed on 10.10.2014.  Responsibility of OP No.2 towards customers is limited to the terms of the warranty policy. The warranty of the vehicle has expired much earlier before filing the present complaint. The complainant never brought to the notice of OP No.2 with regard to defect in the chamber of the vehicle. The defects which are alleged by the complainant cannot be taken into consideration at this point of time. The vehicle is still in possession of OP No.1 and OP No.2 has terminated its dealership to OP No.1  in September 2013. It was the duty of dealer to provide all after sale services to end customers and ought not to have held the subject vehicle for so long.  On merits, it is pleaded that the vehicle was brought to OP No.1 on 04.05.2012 with damage of oil pan chamber due to accident.  There is no manufacturing defect in the engine and rather if any defect has occurred in the engine then it is due to negligence and non maintenance of the vehicle by the complainant.  The vehicle passes through stringent checks before it reaches dealer. Thus, denying any deficiency in service on its part, OP No.2 has sought dismissal of the complaint.

4.             To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-29.

5.             Evidence of OP No.1 consists of affidavit of Jasbir Singh, its Manager Ex.OP-1/1 and copies of documents Ex.OP-1/1 to Ex.OP-1/4.

6.             Evidence of OP No.2 consists of affidavit of Reshma Ravindran, its Manager Legal Ex.OP-2/1 and documents Ex.OP-2/2 to Ex.OP-2/3.

7.             We have heard learned counsel for the parties and have also gone through written arguments filed by them.

8.             The vehicle NISSAN MICRA Car Model  MICRA XV manufactured by  OP No. 2 has been purchased by the complainant from OP No.1 vide invoice dated 04.10.2011 Ex.C-1 by paying sale consideration Rs.5,79,299/- is not disputed.  The vehicle in question is under warranty and OP No.1 has assured to provide best after sale services to the complainant with the guarantee for a period of two years of 60,000 km. whichever is earlier. As per the complainant, in the month of April, 2012, the chamber of the vehicle shown some leakage problem and the complainant approached OP No.1 with the said complaint. OP No.1 temporarily repaired the chamber by pasting M-seal and not changed the leaking chamber. Then in November, 2012 while driving the vehicle, the complainant noticed some noise coming from engine and reported the matter to OP No.1. OP No.1 after inspection of the engine referred the matter to OP No.2 seeking its instructions to open the engine or not.  Since then the vehicle in question is in the possession of OP No.1. OP No.1 has neither repaired the vehicle nor returned it. The factum that the vehicle is still in possession of OP No.1 is duly admitted by OP No.1 as is evident from Ex.C-12 a letter dated 11.10.2013 written by OP No.1 to the complainant.

9.             OP No.1 has denied the deficiency in service and unfair trade practice on its part though has admitted possession of the vehicle with it. Rather the OP No.1 has asked the complainant to take the vehicle by paying parking charges of Rs.350/- per day from the estimation creation date till the delivery of vehicle. Besides denying the dispute on merit, it has taken the preliminary objection of limitation of filing of the present complaint by the complainant. OP No.2 in its reply  has denied the allegation of deficiency in service and took a categoric stand that the vehicle in question is out of warranty and, therefore, the engine could not be replaced free of costs.

10.           Before deciding the complaint on merit, it will be appropriate to decide the preliminary issued raised by OP No.1. As per OP No.1 the vehicle has been purchased on 04.10.2011 and issue regarding leakage in the chamber has been reported by the complainant in April, 2012. The necessary repairs have been effected but the chamber has not been replaced as the chamber was in repairable condition at that time.  However, the same has been replaced on 14.09.2012. The other issue regarding noise from the engine was brought to the notice of OP No.1 on 24.11.2012 and at that time the vehicle had already run 36,000 kms. Therefore, the complaint should have been filed within two years from the date of purchase of the vehicle i.e. 04.10.2011 to 04.10.2013 but has been filed on 10.10.2014 which is beyond the limitation. We are not in agreement with the contention raised by counsel for OP No.1. The date of purchase of the vehicle cannot be treated to be the starting point for counting the limitation for filing the present complaint. The cause of action in favour of the complainant has arisen on 24.11.2012 when he has reported the matter regarding noise from the engine to the OP No.1 and the OP No.1 having admitted knowledge of the same and still the defect has not been rectified so pointed out by the complainant and kept the vehicle with it till date without addressing the grievance of the complainant. Therefore, from 24.11.2012 the complainant has cause of action against the OPs and has filed the present complaint on 10.10.2014 well within the prescribed limitation of two years from the cause of action as per provisions of the Consumer Protection Act. Therefore, the objection raised by the OP No.1 is not sustainable and the complaint having been filed within the limitation as per Section 24 –A of the Consumer Protection Act is maintainable.

11.           Now on merits, the brand new vehicle purchased by the complainant on 04.10.2011 admittedly started giving problems from April, 2012 till 24.11.2012. The defect regarding leakage in the chamber having been rectified by repairing the same with the application of M-seal and not replacing the chamber is not disputed. However, the defect regarding noise from the engine having been reported on 24.11.2012, not rectified either by repair of engine or replacement of engine and depriving the use and benefit of the vehicle to the complainant as the vehicle is still in possession of OP No.1 rather amounts to deficiency in service or unfair trade practice on the part of the OPs is the issue of dispute in the present complaint.

12.           As per OP No.1 the complainant brought his vehicle on 04.05.2012 after driving the vehicle about 17859 KMs to its workshop with the damaged chamber due to the accident and the oil from the pan chamber was leaking. Since the vehicle was insured and the OP No.1 has informed the insurance company, surveyor Shri Hans Raj Gautam was appointed by insurance company who after inspection suggested replacement of the oil pan chamber.  The said fact of surveyor report is in the knowledge of complainant as he has received information under RTI Act from insurance company. Since the complainant himself has not given his consent for replacement of oil pan chamber and wanted to get the chamber repaired, so upon instructions of the complainant the oil pan chamber was not replaced but was repaired.  On 05.06.2012 the complainant again brought his vehicle for getting the second free service and at that time the vehicle had already run 20820 km. Even at this stage the complainant did not offer to get his oil pan chamber replaced.  On 14.09.2012 the complainant brought his vehicle for accident repair when the vehicle had already run 30441 kms.  At that time the bumper fender and oil pan chamber was damaged in the accident. Again the insurance company was informed and while repairing the accidental vehicle, the bumper fender and the oil chamber was replaced against payment. On 24.11.2012 the vehicle again was brought to the workshop of OP No.1 with the complaint of noise in the engine. The complainant wanted the vehicle checked and repaired under warranty. Since the engine of the vehicle was involved, therefore, OP No.1 informed the complainant that in the absence of prior permission and assurance from OP No.2 the engine could not opened or repaired or replaced under warranty. Therefore, on 03.12.2012 OP No.1 sent e-mail to OP No.2 giving complete vehicle repair history and sought the instructions from the OP No.2. However, OP No.2 rejected the request of complainant and did not honour the warranty. Therefore, the engine has not been opened, repaired and replaced and the complainant has been informed vide letter dated 11.10.2013 Ex.C-12 to take the delivery of his vehicle otherwise Rs.350/- would be charged as parking charges. The complainant did not come to take vehicle and the vehicle is still in possession of OP No.1. Further as per OP No.1 it vide letter dated 23.10.2013 Ex.OP-1/2, OP No.2 has cancelled the dealership agreement with OP No.1 and, therefore, it has nothing to do with the vehicle in question.

13.           OP No.2 in its reply as well as evidence submitted that the relationship between the dealer and the manufacturing company is dealt on principle to principle basis and, therefore, once the vehicle has been sold to OP No.1, OP No.1 is responsible for sale and after sale service and. Therefore, OP No.2 is no where connected with the issue of repairs or replacement.  However, OP No.2 has admitted the purchase of vehicle by the complainant in October, 2011 and in April, 2012 the chamber of the vehicle was damaged. OP No.1 informed the same to the complainant that the concerned part was not available with it and after arranging it from OP No.2, OP No.1 has replaced the oil pan chamber. It was only on 14.09.2012 when the vehicle met with an accident and brought for repairs as is evident from vehicle repair history Ex.OP-2/2 and the issue of replacement/repair of engine in dispute is out of warranty as the warranty has expired much before filing of instant complaint. Further the complainant has never brought to its notice regarding issue of noise in the engine.

14.           OP No.1 in its reply to the complaint in Para No.3 of the preliminary objections has stated that on 03.12.2012 though email the entire case history of the vehicle was informed to OP No.2 but OP No.2 has rejected the warranty. We have gone through the contents of Ex.OP-1/4 and Ex.OP-2/2 i.e. the case history of the vehicle, but no document either by OP No.1 or OP No.2 has been produced on record to show rejection of warranty by OP No.2. So much so the letter dated 11.10.2013 Ex.C-12 written by OP No.1 to the complainant is silent about rejection of warranty. The reasons for reminder of taking the delivery of the vehicle from OP No.1 to the complainant are entirely different.  Therefore, plea of OP No.1 regarding rejection of warranty by OP No.2, without supporting evidence, is of no help to it to wriggle out of its liability which it is obliged to provide proper and effective after sale service to the complainant. Even the mention of parking charges @ Rs.350/- per day in the said letter is an act of unfair trade practice on the part of OP No.1 as OP No.1 cannot shift the burden of its own wrong doing to the complainant.

15.            Admittedly, the vehicle has been purchased on 04.10.2011 and as per both the OPs the warranty is valid upto two years or 60,000 km. which ever is earlier. As per OP No.1 the vehicle when reported for repairs on 24.11.2012 had run 34511 KMs. On both accounts i.e KMs and two years period, if when read together from the date of purchase, the vehicle is within warranty and it was duty of OP No.1 to provide proper and effective after sale service to the complainant which it has failed.

16.           Another plea taken by OP No.1 that he ceases to be the dealer of OP No.2 from 23.10.2011 as per Ex.OP-1/2 and, therefore, he has nothing to do with the vehicle in question now. Such plea again is not of any consequence to OP No.1 as the dispute regarding vehicle in question pertains to 24.11.2012 when OP No.1 was dealer of OP No.2 and being the dealer and after sale service centre, it was under obligation to provide proper and effective after sale service, which it has failed to do so and thus the act of OP No.1 amounts to deficiency in service. So much so even OP No.1 has not informed the complainant about cessation of his dealership with OP No.2 and even after 23.10.2013 Ex.OP-1/2 has kept the vehicle unauthorisedly with it, is per se an act of unfair trade practice on the part of OP No.1.

17.           OP No.2 also cannot wriggle out of its liability of warranty which it has assured to provide to the complainant upon purchase of the vehicle. Plea of OP No.2 that the warranty is two years or 60,000 KMs whichever is earlier from the date of purchase of vehicle and the same has expired much before filing the complaint, is factually incorrect. Admittedly the vehicle was purchased on 04.10.2011 and complaint made on 24.11.2011 when the vehicle had run 34511 KMs much below the outer limit of 60,000 kms and much within the expiry time of two years of warranty from the date of purchase of the vehicle 04.10.2011. Complaint regarding noise from the engine is very much in the knowledge of OP No.2 as it has admitted having received the vehicle history from OP No.1 which is Ex.OP-2/2 and still it has not honoured the warranty. Though OP No.2 in preliminary objections in para 7 of its written statement has admitted that its responsibility to the customer is limited to the terms of warranty policy only. Further OP No.2 has itself relied upon the orders of Hon’ble Supreme Court in Jose Philip Mampilli Vs. Premier Automobiles Ltd. & another 2004 (1) CPC 438 (SC) and Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr. JT 2006 (4) SC 113 wherein it has been held that the manufacturer could not be ordered to replace the car or refund its price merely because some defects appear, which could be rectified or defective parts could be replaced under warranty. Thus, the act of OP No.2 in denying the benefit of warranty to the complainant, squarely falls under unfair trade practice as defined under section 2 (r) (vii) (i) of Consumer Protection Act.  Hence, the complainant has proved his complaint against both the OPs as the defect of noise from the engine has not been removed by the OPs during the warranty of the vehicle and further he has been deprived use and benefit of his vehicle causing mental agony and financial loss as he was made to spent Rs.40,000/- on alternative conveyance for hiring taxi for his personal needs and paid insurance premium of Rs.23,450/-. Since the complainant has not adduced any evidence regarding expenditure claimed on alternative conveyance and payment of insurance premium, therefore, without any evidence on record in this regard, the mere claim is of no help to the complainant. No doubt the complainant has suffered mental agony, harassment and financial loss from 24.12.2012 onwards till and he deserves compensation on that account. In support of his claim for compensation and other relief, the complainant has relied upon the decision of the Hon’ble State Commission in first Appeal No.1188 of 2012 decided on 04.08.2014 titled as Nissan Motors India Vs. Anshul Mehta & another wherein the order of the Forum has been affirmed by the Hon’ble State Commission and as per the orders of the District Forum compensation for mental agony and harassment to the tune of Rs.50,000/- and litigation to the tune of Rs.15,000/-  litigation cost.

18.            Therefore, the complaint deserves to be allowed and the complainant deserves to be compensated.

19.           Therefore, the complaint is allowed against both the OPs and both the OPs with the following directions:

(a)    OP No.1 to withdraw letter dated 11.10.2013 Ex.C-12 and further not to charge any parking charges from the complainant regarding the vehicle in question.

(b)    Both the OPs jointly and severally to replace the engine of the vehicle in question as per job history dated 03.02.2012 Ex.OP-1/4 and return the vehicle to the complainant in proper complete and effective roadworthy condition, to the entire satisfaction of the complainant.

(c)    Both the OPs jointly and severally to pay to the complainant a compensation of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment etc.

(d)    Both the OPs jointly and severally to pay to the complainant a compensation of Rs.15,000/- (Rs. Fifteen thousand only) towards costs of litigation

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

September 10, 2015.    

                          (Mrs. Madhu P. Singh)

                                                                        President

(Mrs. R.K. Aulakh)

               Member