Punjab

Rupnagar

CC/19/115

Parmvir Singh - Complainant(s)

Versus

C.M.Autosales (P) Ltd. - Opp.Party(s)

Sh. Harpreet Singh Sehgal, Advocate

24 Mar 2023

ORDER

.

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ROOPNAGAR

 

Consumer Complaint No.  115 of 2019

Date of Institution:          : 12.09.2019

Date of Decision            :  24.03.2023

 

Paramvir Singh, aged about 26 years son of Sh. Rajkinder Singh, resident of Village Maraiuli Kalan PS: Mornda Tehsil Mornda District Rupnagar.

 

….. Complainant

Versus

 

1.       C.M Auto Sales (P) Ltd , Village Khanpur Kharar- Morinda Road Tehsil Kharar District SAS Nagar Mohali, through its Authorized Signatory.

2.       M.Auto Sales (P) Ltd N.H, 21 Rangilpur, Chandigarh Road Punjab Tehsil and District Rupnagar through its Authorized Signatory.

3.       Universal Sompo General Insurance Co. Ltd., Unit 401, 4^th Floor, Sangam Complex, 127 Andheri Kurala Road Andheri (East) Mumbai (Insurer of Car Make Ertiga Hybird VDI bearing registration no. PB-12-AC-1774.

4.       Universal Sompo General Insurance Co. Ltd., First Floor SCO 113, District Complex, Vishal Mega Mart Road Ranjeet Avenue Amritsar.

5.       Maruti  Suzuki India Ltd, Plot No.1  Nelson Mandela Road Vasant Kunj, New Delhi 110070 Manufacturer of Maruti Suzuki India Ltd.,

                                                                         …..Opposite parties

 

(Complaint under the provision of Consumer Protection Act)

QUORUM:

SH.KULJIT SINGH, PRESIDENT

SH.RAMESH KUMAR GUPTA, MEMBER

 

COUNSEL FOR THE PARTIES

For complainant                       :         Sh.H.S Sehgal, Advocate

For OP no.1                                      :         Exparte

For OP no.2                                      :         Sh. Pardeep Mittal, Advocate

For OP no. 3&4                       :         Sh. Ruby Singh Rana, Adv.

For OP no.5                                      :         Sh. S.K Bhanot, Advocate

                            

Per : KULJIT SINGH, PRESIDENT

 

1. This case is a remand case, remanded back from Hon’ble State Commission, Punjab Chandigarh vide order dated 21.12.2022 Hon’ble State Commission, Punjab Chandigarh with direction to decide the case afresh after hearing the arguments and considering the respective evidence so produced by the parties  and also considering expert opinion  the necessary exercise be done by the District Commission. All efforts be made to decide the case expeditiously as early as possible preferably within a period of three months.
2. Brief facts of the case are that on 15.03.2017, the complainant purchased a near car Make Maruti ERTIGA VDISHVS/Supervisor  white bearing Chassis no. 450041 Engine No. 5404152 Model 2017 from OPs. At the time of purchasing the vehicle the OPs also issued warranty card to the complainant  and said warranty card is valid up to 16.03.2022 or up to Rs.1,00,000/- KM in respect of vehicle purchased by the complainant from  OPs.  Immediate after purchase of the vehicle in question, it has come to the notice of complainant that there is some problem in the car purchased by him as the car is not properly in running condition then on 02.04.2018  the complainant took the car from its checking before OPs no.1 and 2 and it has come to the notice that there is PICK up problem in the vehicle /car purchased by him. After on 11.04.2018 the complainant again took the  car  from its checking but even after checking the car  by the engineers the defects of PICK problem has not been remove  and then official of the OPs no. 1 and 2  directed the complainant to come up on 12.04.2018 and then complainant again visited on 12.04.2018 , 3.05.2018, 10.05.2019 but PICK up problem in the car in question has not been cleared/removed. Thereafter on 13.05.2019, 20.05.2019 and on 09.08.2019  the complainant time and took his vehicle but PICK up problem in the car purchased by the complainant is not removed. When PICK up problem in the car of the complainant is not cleared/removed then complainant requested OPs as the vehicle is in warranty period and either to replace the vehicle with new one or to return the amount of the complainant but OPs putting off the matter on one pretext or the other. Due to act and conduct of OPs, the complainant has filed the instant complaint and prayed that the OPs be directed to replace the car in question with new one or to return the amount, besides Rs.50,000/- as damages for harassment and Rs.20,000/- as cost of litigation. notice, OPs
3. Notice sent to OP no.1 but none has appeared on behalf of OP no.1 despite various opportunities. As such, OP no.1 is proceeded against ex-parte on 04.12.2020.
4. OP no.2 appeared and filed its separate written reply and contested the complaint of the complainant by averring that complainant firstly approached workshop of OP at Kharar on 30.06.2017  and demanded repair of the vehicle washing and clearing. On 28.07.2017,  the complainant approached workshop  of OP Kharar and demanded repair. On 27.09.2017, complainant again demanded repair and free service. On 2.4.2018, 11.04.2018, 12.04.2018 and 3.05.2018  the complainant approached workshop of Op  at Kharar and at that time and demanded repair. The said fault was cleared the workshop  of the OP and he had taken the vehicle form the work shop of the complainant  after satisfying  with the service of OP. On 5.6.2018 , the complainant approached the workshop of OP at Kharar and demanded repair  and brake not effective  and at that time problem of pick up was not reported. Again on 28.06.2018, 4.7.2018 and 09.08.2018  the complainant went to the workshop situated at Industrial Area and reported the problem as pick up low  which was cleared by the workshop of OP and complainant left the workshop of OP after satisfying with the service of OP.  On 27.08.2018  complainant approached workshop  of OP  and demanded repair was of the engine was not starting. Again on 19.09.2018, 06.10.2018 the complainant went to the workshop situated at Industrial Area  and reported the problem  as pick up low which was cleared by the workshop of OP and complainant left the workshop of OP  after satisfying  with the service of OP. On 15.11.2018, the complainant approached the workshop of OP  at Kharar  and demanded repair of AC  and at that time problem of pick up was not reported. On 1.5.2019, the complainant approached workshop of OP and demanded repair of outside rear view mirror damage and crack and at that time problem of pick up was not reported. All these shows that there was no pick up defect in the car at the time of purchase of the car and it was due to rough driving of the car by the complainant. The defect in the vehicle was removed by OP time to time.  No report of mechanic or surveyor /loss assessor has been filed  to prove any manufacturing defect in the vehicle. OP no.1 denied any deficiency in service on its part and it prayed for dismissal of the complaint.
5. OPs no.3 and 4 appeared and filed joint written reply and contested the complaint of the complainant by raising preliminary objections that complainant has no locus standi to file the present complaint. The complaint is not maintainable. The complainant has not come to the court with clean hands. On merits, it was averred that OPs are not liable to replace the car and nor to pay any amount for any mechanical defect in the car which comes during the use of vehicle. There is no such clause in the policy issued by the OPs. Rest of the averments of the complainant were denied by OPs no.3 and 4 and they prayed for dismissal of the complaint.
6. OP no.5 appeared and filed its separate written reply and contested the complaint of the complainant by averring that the complainant had purchased Maruti Ertiga  and has taken the vehicle to OPs no.1 and 2 for problem relating to pick up on 2.4.2018, 11.04.2018, 12.04.2018, 3.05.2018, 10.05.2018, 13.05.2019, 20.05.2019 and 09.08.2019 but the problem of pick could not be resolved.  The complainant has purchased the vehicle on 17.03.2017 and had taken the vehicle to the workshop with the alleged pick up problem for the first time on 02.04.2018 after covering mileage of 26336 KM. On reporting the problem, the vehicle was duly attended under warranty on free of cost basis and was released after cleaning the engine.  The complainant again reported the same issue after few days, therefore, the vehicle was again attended on different occasions and following the diagnostic procedure  few independent parts like controller assy, disesel engine, valve assy, T/C vaccum control were replaced to identify the real cause of low pick up and vehicle was kept under observation. The ECU was also reprogrammed to identify the problem.  In the meantime the inspection of the vehicle was arranged by the technical team of experts and on 4.10.2018 at the mileage of 34751 KM, issue was identified and complete work was done on the same by replacing intake manifold, head assy, intake and exhaust valve, catalytic converter, valve comp and EGR under warranty on free of costs basis and vehicle was released to the complainant. Thereafter, complainant has been making extensive usage of the vehicle without any complaint of pick up. The complainant reported the vehicle to the workshop on various occasions for regular service  and maintenance works but never raised any problem of pick up.  On 10.05.2019 after covering mileage of 57850 KM  the complainant again reported the pickup issue in the vehicle. The vehicle was kept under observation and exhaust manifold part was ordered and has been replaced on 13.5.2019 under warranty on free of cost basis. Thereafter, the vehicle has been brought to workshop on multiple occasion for regular maintenance activities and was brought on 19.03.2020 but on such occasion the complainant has ever complained of pick up issue thereby confirming that the problem highlighted has been resolved.  The vehicle parts were inspected on multiple occasion and on finding out the issue, the same was resolved by replacement of part. All these works were done under warranty and complainant was never charged for them.  The complainant has not been able to prove any manufacturing defect. Res of the averments of the complainant were denied by OP no.5 and it prayed for dismissal of the complaint.
7. The complainant tendered in evidence his affidavit Ex.CW-1/A along with copies of documents Ex.C-1 to Ex.C-9 and closed the evidence.  On the other hand, OP no.2 tendered in evidence affidavit of Vijay Devgan General Manager of CM Auto as Ex.OP-2/A along with copies of documents ExOP-2/B to Ex.OP-2/U and Mark A to Mark Z , Mark A1 and Mark A2 and closed the evidence. OPs no.3 and 4 tendered affidavit of Sh. Piyush Shankar as Ex.OP-3/A along with copies of documents Ex.OP-3/B and Ex.OP-3/C and closed the evidence. OP no.5 tendered in affidavit of Aman Goyal as Service Manager as Ex.OP-5/A along with copies of documents Ex.OP-5/B to Ex.OP-5/D and closed the evidence.
8. We have heard learned counsel for the parties and have also gone through the record very carefully as well as written arguments filed by parties.
9. First of all, this case has been decided by this Commission vide order dated 05.07.2022 with direction to OPs no.2 & 5 to replace the vehicle  in question with new one. The complainant is also entitled for Rs.50,000/- as compensation on account of mental agony and physical harassment along with litigation expenses to the tune of Rs.22,000/-. But OPs filed appeal against the order dated 05.07.2022 passed by this Commission before Hon’ble State Commission, Punjab, Chandigarh and Hon’ble State Commission vide order dated 21.12.2022 remanded the case to this Commission  to decide the case afresh after hearing the arguments and on considering the respective evidence so produced by the parties and also by considering the expert opinion.
10.  The main controversy involved in the instant case is whether deficiency in service or unfair trade practice attributed on the part of OPs or not? This fact is not disputed that the complainant purchased the vehicle in question i.e. Maruti ERTIGA from OPs on 15.03.2017. The vehicle in question is also insured with OPs no.3 and 4 which is valid from 17.03.2019 to 16.03.2020 vide Ex.C-3 on the record.  Ex.C-4 is tax invoice cum certificate of extended warranty registration, in which the basic price is mentioned as Rs.20,840/-, the extended warranty royal platinum is valid up to 16.03.2022 or up to 1,00,000 KMs. From perusal of entire record, it has transpired that the complainant suffered the problem in the vehicle in question from the date of purchase of the vehicle in question, this fact is clear from perusal of job cards Ex.C-7 to Ex.Ex.C-21 of different dates. In Job card Ex.C-9 dated 2.4.2018, it has been specifically mentioned that EGR NEED CLEAN BUT CR VEH PICK UP PROBLEM CHECK UDER WARRANTY and mileage is recorded as 26336. In Job Card Ex.C-10 dated 11.04.2018, it has mentioned that PICK UP LOW CHECK UNDER WARRANTY, VEH ENGINE MISSING , PICK UP LOW, 60/70  km SPEED CHECK FOUND OK UDER OBSERVATION, the mileage has been recorded as 27491. In job card Ex.C-11 dated 11.04.2018, it has been mentioned that PICK UP LOW CHECK UNDER WARRANTY VEH ENGINE MISSING, PICK UP LOW 60/70 KM SPEED CHECK FOUND OK UNDER OBSERVATION, the mileage has been recorded as 27491. In Job Card dated 10.05.2019 Ex.C-14 it has been recommended that PICK LOW UNDER OBSERVATION – exhaust manifold part on order.  In Job Card Ex.C-17 dated 09.08.2018  it has been recommended that CODE COMING IN HISTORY AND P0403, CODE CLEAR, PICK UP PROBLEM UNDER OBSERVATION, PART ECV ON PART and the mileage has been mentioned as 31627.  In Job Card Ex.C-18 dated 27.08.2018 it has been recommended that PICK UP & STARTING PROBLEM UNDER OBSERVATION, the mileage has been mentioned as 33039. Vide job card Ex.C-20, various parts of the vehicle in question changed without any labour charges. This fact is not disputed that the pickup problem persisted in the vehicle in question from time to time and from perusal of above mentioned job card, OPs repair the problem as and when required. Three Free services of the vehicle in question done by OPs, this fact is clear from perusal of vehicle history Ex.OP-2/B to  Ex.OP-2/F placed on the record.  In vehicle history documents Ex.OP-2/G to Ex.OP-2/K the pick low of the vehicle demanded repair. From perusal of above vehicle history documents, it seems that the pickup problem in the vehicle in question persisted from the first date of purchase of the vehicle. We have also perused the warranty conditions Ex.OP-5/D placed on the record, in the warranty condition it has been specifically mentioned that “the term of the warranty shall be 24 months or 40,000 km (whichever occurs first) from the date of invoice to the first owner. As per document Ex.C-4, the complainant extend the warranty the car in question and paid Rs.24,591/- to OPs.
11.   From perusal of entire record of the file, it has transpired that complainant has purchased the vehicle from OP, vehicle was under warranty period at the relevant time, number of visits made by the complainant and its check up by OP each time returning the same with minor repairs and OPs repaired the same, this fact is clear from perusal of various job cards of different dates placed on the record. The complainant has numerous times complained regarding the problem of pick up. We have perused Clause 3 of the Warranty policy as provided in Owners Booklet and Service Manual , the manufacturer was only liable to repair or replace the defective parts in the vehicle and not the entire vehicle. The complainant purchased the vehicle i.e. car from OPs against invoice letter issued by OP to the complainant. At the time of purchasing of the said vehicle, OPs issued warranty card to the complainant, which was valid up to 16.03.2022 or up to 1,00,000 KM . After purchasing the vehicle in question , there was some problem in the vehicle as the car was not running properly as noticed on 2.4.2018. Thereafter, the car was taken for checking by the complainant to OPs no.1 and 2 and it was found that there was problem of pick up. Again on 11.4.2018, the complainant took the car for its checking and on checking it was found by the Engineers that defect of the pickup had not been removed and OPs no.1 and 2 asked the complainant to come on 12.4.2018. The complainant visited on 12.4.2018, 3.5.2018 and 10.05.2019 but still the problem of pick up was not sorted out. Further visited on 13.5.2019 and 20.05.2019 as well as on 09.08.2019 and complainant alleged that the problem of the car was not removed. But from perusal of various job cards of different dates, this fact is also clear that the OPs repaired the vehicle in question as and when required. The main issue was regarding of low pick up in a new diesel vehicle which could be due to adulterated fuel or poor quality of diesel being used in the vehicle or due to defective fuel pump/filter and bad quality of fuel. Free services were given to complainant’s vehicle by OPs,  this fact is clear from job card placed on the record.  As per the vehicle service history, it was found that EGR was unclean and needed cleaning but it was refused by complainant despite recommendation by service manager. The service manager also advised him to focus upon avoiding any major issue from popping up but he did not pay any heed to the same. On each and every time, issue was duly redressed and the vehicle was handed over to the complainant.  The complainant has failed to produce any expert opinion to prove that any manufacturing defect in the vehicle in question occurred from the first date of purchase of the vehicle. If problem occurred in the engine of the vehicle or pick up problem time and again then it was bounden duty of the OPs to remove the defects of the vehicle as and when required. The case law laid down by Hon’ble National Commission, New Delhi titled as Tata Motors Ltd. versus Bishamber Nath Sikka and others reported in 2018(1) CLT Page 306 is applicable in the present case, wherein it has been held that it is very clear that vehicle did suffer from defects, as it had to be taken to the workshop of the dealer from time to time. The owner of the vehicle is not expected to take such vehicle to the workshop a number of times, unless the vehicle suffers from a genuine defect. It becomes duty of the manufacturer as well as dealer to solve the problem of the complainant and ensure that the vehicle is delivered back to him in a road-worthy condition free from all defects. Similarly, the case law relied upon by Hon’ble National Commission in case titled as Maruti Suzuki India Ltd. versus Dr. Koneru Satya Kishre and others reported in 2018(1) CLT Page 564-65 that  a defect in a vehicle may come under the category of ‘manufacturing defect’ or otherwise, a vehicle is said to be suffering from defect, it there is any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard, which was required to be maintained under any law in force. It would be seen from above that whether the defect in the vehicle qualified to be called a ‘manufacturing defect’ or not, it was duty of the OPs to take steps to remove the defects and provide the vehicle to complainant in a road-worthy condition.          Both above cited judgments are applicable in this case. In the above citations Hon’ble National Commission upheld the case of the State Commission.
12.  In view of our above discussion and as per above citation of Apex Court, the present complaint is partly allowed. The OPs no.1, 2 and 5 are directed to remove the defects and provide the vehicle to complainant in a road-worthy condition. The complainant is directed to deliver the vehicle in question to OPs within 15 days from today and OPs are directed to remove the defect in the vehicle and delivered the same to complainant within further 15 days from receipt of above said vehicle in question.
13. The compliance of the order be made within 45 days from receipt of copy of this order.
14.  This complaint could not be decided within stipulated period due to heavy pendency of the cases. Copies of the order be supplied to the parties free of costs. File be indexed and consigned to the record room.

Dated         :24.03.2023                                                                              (Kuljit Singh)

                                                                                                                         President

 

                                           ( Rakesh Kumar Gupta)              

                                                           Member