Chandigarh

StateCommission

A/68/2020

Vijay Laxmi Jaiswal - Complainant(s)

Versus

Bhagat Ford - Opp.Party(s)

S.C. Pathela Ntin Thatai, Pawan Kumar, Rupali & Kanika Adv.

09 Dec 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

Appeal No.	68 of 2020
Date of Institution	16.03.2020
Date of Decision	09.12.2020

 

Vijay Laxmi Jaiswal daughter of Sh.Ganga Saran Jaiswal resident of Quarter No.3004, Type-9, Sector 15-D, Chandigarh.

 

                           …..Appellant/Complainant.

                           Versus

1. Bhagat Ford, M/s A.B.Motors Pvt. Ltd., 53, Industrial Area, Phase 2, Chandigarh through its Managing Director/Manager.
2. Ford India Pvt. Ltd., 3^rd Floor Building 10-C, DLF Cyber City, DLF Phase II, Gurugram (Gurgaon) through its Managing Director/Manager.

…..Respondents/Opposite Parties No.1 & 2.

3. CEAT India Ltd., 463, CEAT Mahal, RPG House, Doctor Annie, Basant Road, Worli, Mumbai near old Passport Office, through its Managing Director/Manager.

…..Performa Respondent/Opposite Party No.3.

Argued by:

 

Sh. Nitin Thatai, Advocate for the appellant/ complainant.

Sh. H.S.Bedi, Advocate for respondent No.1.

Respondents No.2 & 3 exparte vide order dated 16.09.2020.

 

Appeal No.	72 of 2020
Date of Institution	19.03.2020
Date of Decision	09.12.2020

 

M/s AB Motors Pvt. Ltd. (Bhagat Ford) # 53, Industrial Area, Phase 2, Chandigarh through its Managing Director/Manager.

 

…..Appellant/Opposite Party No.1

                        Versus

1. Ms.Vijay Laxmi Jaiswal d/o Ganga Saran Jaiswal, Quarter No.3004, Type-9, Sector 15-D, Chandigarh.

              .... Respondent No.1/complainant

2. Ford India Pvt. Ltd., 3^rd Floor Building 10-C, DLF Cyber City, DLF Phase II, Gurugram (Gurgaon) through its Managing Director/Manager.
3. CEAT India Ltd., 463, CEAT Mahal, RPG House, Doctor Annie, Basant Road, Worli, Mumbai near old Passport Office, through its Managing Director/Manager.

….. Respondents No.2 & 3/Opposite Parties No.2 & 3

 

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                MRS. PADMA PANDEY, MEMBER.

                MR. RAJESH K. ARYA, MEMBER.

 

Argued by:

 

Sh. H.S.Bedi, Advocate for the appellant.

Sh. Nitin Thatai, Advocate for respondent No.1.

Respondents No.2 & 3 exparte vide order dated 16.09.2020.

 

PER PADMA PANDEY, MEMBER

                This order shall dispose of two appeals bearing No.68 of 2020 filed by the complainant and bearing No.72 of 2020 filed by Opposite Party No.1, against impugned order dated 11.02.2020, passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘Forum’ only) – now District Consumer Disputes Redressal Commission-I, UT, Chandigarh, vide which, it partly allowed Consumer Complaint No.312 of 2018 against Opposite Parties No.1 & 2, with the following directions: -

“12. In view of above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed qua OPs 1 & 2. Ops 1 & 2 are directed as under :-

1. to refund sale price of the vehicle in question i.e. Rs.6,99,199/- to the complainant upon return of the vehicle by her. However, no interest is being awarded on this amount as the vehicle is in the custody and control of the complainant and she used it at least for 1 ½ years prior to the date of institution of the present consumer complaint.
2. To pay an amount of Rs.30,000/- to the complainant as compensation for causing mental agony and harassment to her;
3. To pay Rs.15,000/- to the complainant as cost of litigation.

13.  This order be complied with by OPs 1 & 2 within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of amounts mentioned at Sr.No. (i) & (ii) above, with interest @9% per annum from the date of this order, till realization, apart from compliance of direction at Sr. No.(iii) above.
14. Since no deficiency in service or unfair trade practice has been proved qua OP-3, therefore, the consumer complaint qua it stands dismissed with no order as to costs.”

2.            In the complaint case before the Forum (now District Commission), the only dispute was with regard to manufacturing defect in the vehicle, which was opposed by Opposite Parties No.1 & 2 by filing separate written statements, in which, they stated that as and when the defects were noticed in the car, the same were removed and, as such, pleaded that there was no manufacturing defect in the vehicle in question.

3.         Aggrieved against the aforesaid order passed by the Forum (now District Commission), both the parties i.e. complainant and Opposite Party No.1, filed the separate appeals bearing Nos.68 of 2020 and 72 of 2020, before this Commission, as stated above.

4.             Respondents No.2 & 3 did not appear, despite service. Hence, they were proceeded against exparte vide order dated 16.09.2020 in both the aforesaid appeals.

5.             We have heard Counsel for the contesting parties, and have gone through the evidence and record of the case, carefully.

6.             Counsel for the appellant/complainant in (Appeal No.68 of 2020) submitted that the Forum, while passing the impugned order, failed to appreciate the fact that the complainant suffered a lot due to defects in the vehicle but while granting refund of the sale price of the car, in question, no interest was awarded by the Forum. He has further submitted that compensation & litigation expenses awarded by the  Forum is on the lower side and prayed for enhancement of the same.  

7.             The Counsel for the appellant/Opposite Party No.1 (in Appeal No.72 of 2020) submitted that the Forum failed to note that if on the basis of report of expert, there is manufacturing defect in the vehicle, then as per the settled law, only the manufacturer i.e. Opposite Party No.2 – M/s Ford India Pvt. Ltd. could have been held liable and the appellant/Opposite Party No.1 being its dealer could not have been held liable jointly alongwith the manufacturer. He has further submitted that the report of the expert (Punjab Engineering College) is also vague as it was not based upon any proper inspection of the vehicle. He prayed for setting aside the impugned order and allowing the appeal filed by Opposite Party No.1.

8.         After giving our thoughtful consideration, to the submissions, raised by Counsel for the contesting parties, and the evidence, on record, we are of the considered opinion, that both the appeals filed by the complainant as well as Opposite Party No.1 are liable to be dismissed, for the reasons to be recorded, hereinafter.

9.         The sole point for consideration before us is as to whether the Forum rightly passed the impugned order. The answer, to this, question is in the affirmative. Annexure C-2 is a retail invoice dated 14.01.2017. From this document, it is clearly proved that the complainant purchased Ford Eco Sport car from Opposite Party No.1 (dealer of Opposite Party No.2) on 14.01.2017 in the sum of Rs.6,99,199/-. Annexure C-5 is a copy of letter dated 27.07.2017. From this document, it is proved that after about six months of its purchase, the complainant lodged the complaint regarding tyres. Annexure C-6 is copy of invoice. Annexure C-7 is a copy of letter dated 28.11.2017. From this document, it is proved that the complainant visited the service centre about tyres problem but it was denied for replacement of the same, as such, the complainant got replaced the tyres by spending an amount of Rs.6,000/-. The said letter dated 28.11.2017 also shows that the complainant lodged a complaint regarding front screen constantly showing an image. Annexure C-8 is a copy of letter dated 01.01.2018. From this document, it is proved that the complainant faced lot of harassment and mental agony due to the multiple defects in the vehicle i.e. tyres, front screen flashing an image and also burning of some wire, due to which, there was a very strong burning smell when the complainant put the button on heater. Annexure C-9 is a copy of letter dated 02.01.2018. From this document, it is proved that due to fog in Chandigarh, the complainant was unable to operate heater and even though fan and AC button was off. Annexure C-10 is a copy of invoice regarding burning smell in the cabin. Annexures C-12 to C-14 are copies of correspondence exchanged between the customer care and the complainant. Even in Annexure C-14, the complainant sent email to customer care that AC of the car was not working and there was no cooling, due to which, there is manufacturing defect in the vehicle and prayed for replacement of the vehicle.  

10.           After perusal of the impugned order as well as annexures annexed by the parties, we are of the view that there was multiple defects in the vehicle, as such, the Forum has rightly said that repeated defects had cropped up in the vehicle in a short span of time and the appearance of defects began after 5-6 months from the date of purchase. When one defect was cured, another cropped up, but permanent solution to the said defects was not made by the dealer as well as manufacturer. Even the warranty of the vehicle was two years from the date of purchase but the defects in the vehicle occurred only after 5-6 months of its purchase. Therefore, to prove the said fact, on the request of the complainant and after hearing the Opposite Parties, the vehicle was inspected by Dr.Sushant Samir – Professor, Prof. Ankit Yadav, Assistant Professor, Mechanical Engg. Department, PEC, Chandigarh and Sh.Gopal Dass, W.I. (at page No.107 of the record of the Forum). Perusal of the report shows that the complainant as well as Sh.G.S.Thakur, Service Operation Head, Bhagat Ford, Chandigarh were present during inspection and test drive. The vehicle, in question, was inspected and test driven for 43 Kms. The relevant portion of the said report reads thus :-

“During inspection and test drive it has been observed that AC and Heater were working properly and there was no flashing of image on dashboard of the vehicle, in addition, there was no burning smell coming from the vehicle during the test drive. However, there was a major problem of pick up of the vehicle in question. The complainant informed that this problem pertains since purchase of vehicle. The committee is of the opinion that the vehicle in question has a problem of pick up during driving and if this problem is from the purchase of vehicle the same can be attributed to a manufacturing defect.”

Even the plea taken by the appellant/Opposite Party No.1 that the report of the expert (Punjab Engineering College) is also vague as it was not based upon any proper inspection of the vehicle, has no value at all because from the aforesaid report, it is clearly proved that proper inspection was carried out by the professors of Punjab Engineering College, Mechanical Engg. Department. Not only this, the impugned order was passed by the Forum after going through the objections filed by the Opposite Parties. The Opposite Parties failed to place on record any expert opinion, which could prove that there was no manufacturing defect in the vehicle. It is, however, undoubtedly established that the car suffered from one or the other defects/problems almost from 5-6 months of its purchase. So, it is clearly proved that the vehicle was having some manufacturing defect and the Forum has rightly directed to refund the sale price of the vehicle, in question.

11.           With regard to objection taken by the appellant/Opposite Party No.1 that if there is a manufacturing defect, then only the manufacturer i.e. Opposite Party No.2 – M/s Ford India Pvt. Ltd. is liable to refund the sale price of the vehicle instead of Opposite Party No.1 being its dealer is concerned,  we are of the view that Opposite Party No.1 is equally responsible alongwith Opposite Party No.2. It is, no doubt, true that Opposite Party No.1 being a dealer purchased the vehicle from the manufacturer i.e. Opposite Party No.2 and after sale, service of the vehicle as well as removal of the defects, if any, in the vehicle, is the sole duty of Opposite Party No.1 and if some defects could not be rectified, it is the duty of Opposite Party No.1 being a dealer, to bring to came to the knowledge of Opposite Party No.2 being the manufacturer. In the instant case, the vehicle was under warranty period of two years from the date of purchase and defects started occurring within 5-6 months of its purchase. The complainant, not only once but number of times visited the service centre i.e. Opposite Party No.1 for removal of the defects but the defects were not removed to the entire satisfaction of the complainant. Moreover, the complainant exchanged number of emails/letters with Opposite Party No.1 as well as with Opposite Party No.2, but to no avail. The complainant being service class person cannot visit again and again to the service centre for removal of the defects. Even it is the duty of the dealer i.e. Opposite Party No.1 to provide the defect free vehicle to the complainant because hefty amount was received by the dealer.  The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as “Jagrut Nagrik & ors. Vs. Proprietor, Baroda Automobiles Sales and Service, Vadodara, Gujarat & ors., Revision Petition No.743 of 2010, decided on 14.09.2020, the relevant portion reads thus :-

“So far as the liability to make the payment of awarded amount is concerned, we have no manner of doubt that the opposite parties i.e. the manufacturer of the car as well as the sales and service dealer are liable to pay the same.

However, if in the reckoning of the manufacturer, under some agreement, the liability to pay is only that of the dealer alone on the strength of such agreement it will be for them to work out the remedy for realization of the amount in case the amount is recovered from them.”

So, we are of the view that the dealer as well as manufacturer are equally responsible for refund of the sale price of the car, as such, the objection taken by the dealer – Opposite Party No.1 stands rejected.

12.           For the reasons recorded above, we are of the opinion that the order passed by the Forum (now District Commission), being based on the correct appreciation of evidence and law, on the point, does not suffer from any illegality. Hence, the appeal filed by Opposite Party No.1, being devoid of merit, must fail, and the same stands dismissed, with no order as to costs. The order of the Forum (now District Commission) is upheld.

13.           With regard to appeal bearing No.68 of 2020 filed by the complainant for granting interest as well as enhancement of the award of the Forum is concerned, we are of the view that the Forum has rightly passed the impugned order because the complainant was awarded refund of sale price of the vehicle, in question i.e. Rs.6,99,199/- upon return of the vehicle by her as well as compensation of Rs.30,000/- and litigation expenses of Rs.10,000/-. Even with regard to non granting of interest alongwith refund of sale price of the vehicle is concerned, the Forum has rightly held that no interest is being awarded on the amount as the vehicle is in the custody and control of the complainant and she used it at least for 1 ½ years prior to the date of institution of the complaint. So, we are of the view that the Forum has sufficiently granted award to the complainant, and we find no ground for enhancement of the same. As such, the appeal bearing No.68 of 2020 filed by the complainant also stands dismissed, with no order as to costs.

14.        For the reasons recorded above, both the appeals i.e. bearing No.68 of 2020 (filed by the complainant) as well as appeal No.72 of 2020 (filed by Opposite Party No.1) have been dismissed, with no order as to costs and the impugned order is upheld.

15.           Certified copies of the order be sent to the parties free of charge.

16.           File be consigned to the Record Room after completion.

Pronounced.

09.12.2020                                                                     

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

                                                           (PADMA PANDEY)

        MEMBER

 

 

(RAJESH  K. ARYA)

MEMBER

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