Punjab

Patiala

CC/14/220

Kanwldeep Singh - Complainant(s)

Versus

Custmur services - Opp.Party(s)

Sh Alok Diwan

19 Mar 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

 

                                        Complaint No. CC/14/220 of 19.08.2014.

                                        Decided on:        19.03.2015.

 

Kawaljit Singh son of Mohinder Singh, resident of Rajinder Nagar, Tehsil and District Fatehgarh Sahib.

                                                                             Complainant

                                                Versus

1.       Customer Service Division, Toyota Kirloskar Motor Ltd. Plot No.1, Bidadi Industrial Area, P.O. Bidadi, Ramanagara District, Karnataka, PIN-562 109.

2.       EM PEE Motors Ltd. Authorized Dealer PIONEER TOYOTA, Plot No. C-154, Focal Point, Patiala.

                                                                           Opposite  parties

Complaint under Section 12 of the Consumer Protection Act.

 

                                      QUORUM

 

                                      Sh. D.R. Arora, President.

                                      Smt. Neelam Gupta, Member.

                                     

Present:                          Sh. Alok Diwan, Adv, counsel for the complainant.

Sh. S.R. Bansal, Adv. Counsel for the opposite parties

 

ORDER

 

D.R. ARORA:

1.                It is the case of the complainant that he had purchased Innova Super White Car 2.5G on 02.03.2012 from opposite party No.2. The car bore Engine No. 2KD6963869. At the time of the purchase of the vehicle there appeared rust on the roof and with the passage of time the same had exaggerated. The complainant brought the matter to the notice of opposite party No.2, who agreed with the problem of the roof rust. The complainant had been approaching opposite party No.2 for curing the said defect. The vehicle was even retained by opposite party No.2 for three days, two months before the filing of the complaint but the defect could not be cured.

2.                With the passage of time the said rust/spots spread and the matter was reported from time to time with the opposite parties but no meaningful action was taken to cure the problem.  It is alleged that the said defect is not curable with paint work as it is a manufacturing defect having occurred at the time of manufacturing the vehicle as the Iron Sheet of high quality was not used. It is alleged that the complainant is entitled to a compensation in a sum of Rs.20,000/- on account of the defect, Rs. 20,000/- on account of the harassment and Rs. 20,000/- as litigation expenses.

3.                It is averred that earlier the complainant had brought a complaint in this regard before the District Consumer Disputes Redressal Forum, Fatehgarh Sahib on 01.02.2013, in the proceedings of which the opposite parties had been served but they were proceeded against exparte, who got the exparte order set aside having approached the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh and thereafter the opposite parties filed an application for dismissal of the complaint for want of territorial jurisdiction  and accordingly, vide order dated 28.05.2014, the District Forum returned the complaint for being presented before the Forum of competent jurisdiction. Hence the complaint against the opposite parties.

4.                On notice, the opposite parties appeared and filed their written versions separately. In the written version filed by opposite party No.1, who is the Customer Service Division of the manufacturer, it has raised certain preliminary objection, interalia, that the complaint is liable to be dismissed due to lack of territorial jurisdiction by the Forum; that the complaint being false, frivolous and vexatious, the same is liable to be dismissed being an abuse of the process of law; that there is no manufacturing defect or any deficiency of service on the part of the opposite party and therefore, the complaint is liable to be dismissed and that the relationship, between opposite party No.1 and No.2 is of principal-to-principal and the issues relating to the booking, delivery, cancellation, servicing and customer relations etc. are to be handled independently by the dealers and the opposite party is not responsible for the acts and omissions of opposite party No.2. As regards the facts of the complaint, it is not denied by the opposite party that opposite party No.2 is its authorized dealer and it has expressed lack of knowledge with regard of the complainant having purchased the car in question from opposite party No.2. The complainant had never made any complaint regarding the rust/spotting of the impugned vehicle until the expiry of the period of 6 months from the purchase of the vehicle and the report was made after the mileage of about 7210 KMs and therefore the allegations regarding the rust/spots are concocted.  On receipt of the complaint made by the complainant on 06.08.2012 regarding the rust/spots on the roof, the expert engineers of the opposite parties examined the paint quality and found that there was no manufacturing defect. It was also found:

•  The thickness of paint at Hood, LH side door, RH side door, back door, roof area was tested for its normalcy using DFT measuring equipment and found that all the test results were normal and observed that the paint on impugned vehicle had no manufacturing defect.
• The hardness of the paint on Hood, Fender, Doors( LH, RH & Back) and roof were normal and no sink marks were observed.
• No peeling off were observed in adhesion test.”

Thus, it was confirmed that there was no manufacturing defect aprops to paint in the vehicle and the same was duly communicated to the complainant.

5.                 It is further the plea taken up by the opposite party that rust/spots in the vehicle may have been caused due to following reasons:

1.       Stones or metal particles hitting on horizontal surface may lead to paint chip off.

2.       Vehicle parked at construction area, stone chip may fall on body causing abrasions and later resulting in chip off while vehicle washing.

3.       Stones Chips may fall on body while moving on road from front vehicle   ( truck carrying stones, etc.).

4.       Chemical or fertilizer mixed in water may be used for washing purpose resulting in this problem.

5.       The same may be caused due to fall of welding spots on the vehicle.

Ultimately, after denouncing the other averments made in the complaint, going against the opposite party, it was prayed to dismiss the complaint.

6.                In the written version filed by opposite party No.2, it has also not denied the complainant having purchased the vehicle in question from it.  The complainant had purchased the vehicle after making the selection of the same and after having made physical inspection as also the test drive before taking the delivery of it. There was no defect in the vehicle at the time of making the delivery and the complainant had satisfied himself.

7.                It is averred by the opposite party that the complainant has not led any expert / cogent evidence in support of his version. There was no deficiency of any service on the part of the opposite party. This opposite party has not denied the jurisdiction of the Forum to try the complaint. After controverting  the other allegations of the complainant, going against the opposite party, it was prayed to dismiss the complaint.

8.                In support of his complaint, the complainant produced in evidence Ex. C-A, his sworn affidavit, Ex. C-B, the sworn affidavit of Sh. Kartar Singh, proprietor of Benz Motors, Ludhiana, along with documents Ex. C-1 to Ex. C-19 and his counsel closed the evidence. On the other hand on behalf of the opposite parties their counsel tendered in evidence Ex. OPA, the sworn affidavit of Sh. Yash Pal Sharma, Assistant Sales Manager of opposite party No.2, Ex. OPB, the sworn affidavit of Mr. Shrinivas P. Gotur,  Deputy General Manager- Legal & company Secretary of opposite party No.1 along with documents Ex. OP-1 to OP-3 and their evidence was closed by  the order of the Forum.

9.                The parties failed to file the written arguments. We have heard the Learned Counsel for the parties and gone through the evidence on record.

10.               In support of his plea taken up by the complainant that there appeared the spots of rust on the roof of the car make Innova as also on the door of the driver side, towards the right side glass and on the right side glass, the complainant has produced in evidence the photographs Ex. C4 to Ex. C15 and the technical report dated 25.11.2014 obtained from Benz Motors, Ludhiana besides  his sworn affidavit Ex. CA and the sworn affidavit Ex. CB of said Benz Motors Ludhiana.

11.               The photographs Ex. C4 to Ex. C15 are not shown to be connected with the vehicle in question because no identification mark of the vehicle i.e. registration number or anything else is appearing in the photographs. No photographs of the front side of the vehicle as also back side of the vehicle are produced. The complainant has also not produced the sworn affidavit of any person, who might have taken the photographs of the vehicle in question. Moreover the problem of the complainant could not be appreciated with the help of the photographs because in the photographs there have appeared reflections  of the sky.

12.     Today the complainant had brought the vehicle to the Forum and we examined the same in the presence of the complainant and we were really surprised to see that there did not appear any spots/scratches or any rusting either on the roof of the vehicle or on the right side window and rather the vehicle is found to have been maintained very nicely by the complainant as the paint of the vehicle appeared very shining and bright, without any spots/scratches or rusting. Therefore, any amount of the evidence, to have been led by the complainant in the form on certificate Ex. C19 obtained by the complainant from Benz Motors can be said to have been maneuvered. A perusal of the said technical report Ex. C19 would go to show that the same has been prepared by the Proprietor of the said Benz Motors  and it is disclosed in the report; “During the inspection I found defect in the said vehicle in the shape of roof dust deformation. The said problem is in existence since the very beginning. The top roof of the Innova Car in question was rusted and there are various scarfs/spots of rust which are in existence on the driver door as well as on the right side glass, as well as left side glass and left side down on the vehicle in question and they are being spreading with the passage of time. There is manufacturing defect in the said Innova. The said defect occurred at the time of manufacturing/assembling the vehicle in question. The quality of iron sheet used at the time of manufacturing of Innova car is of poor quality and the defect cannot be cured by paint work. The whole body-shell will be replaced.” We really fail to appreciate the said technical report because the proprietor of Benz Motors is not shown to have got any qualifications in finding out such a defect in the body shell of the vehicle. Nothing is disclosed in the technical report as to what is the experience of the proprietor of Benz Motors, Ludhiana in dealing with the repair of the body shells of the cars qua the defect in the paint or the sheets  used in preparing the body shells. Therefore, it can safely be said that the report has been procured  by the complainant from Benz Motors, Ludhiana. Whereas the complainant alleges about the existence of the spots on the roof of the car as also the rusting on the right side glass as well as left side glass but the technical report talks about the roof dust deformation. The said defect is said to be in existence from the very beginning. The complainant also alleges that when he had purchased the vehicle, on the top of the roof of the car there appeared the scratches/spots qua the spots of the rust on the side of the driver door as also on the right side glass as well as left side glass. Had there been any such defect in the vehicle, one fails to understand as to why the complainant would have taken the delivery of the same, going to show that the allegations made in the complaint are baseless.

13.     Today the complainant, on our asking produced the Owner’s Manual & Warranty Booklet of Toyota Innova and provided the photocopy of Chapter 7 of the said Owner’s Manual pertaining to the vehicle warranty. On page 487 under the heading What is not covered and under the Sub heading: Factors beyond the manufacturer’s control it is recorded, “1. Repairs and adjustments required as a result of misuse (e.g.) racing, overloading, over-revving or similar improper usage, negligence, modification, alteration, tampering, disconnection, improper adjustments or repairs by Unauthorized Toyota Dealer and/or personnel, accident and use of add on parts/materials not supplied by Toyota are not covered. 2. Cosmetic or surface corrosion from stone chips or scratches in the paint is not covered. 3. Damages and/or surface corrosion problems due to the environment such as acid rain, airborne fall-out (chemicals, tree, sap etc., salt, hail, windstorms, lightning, floods, torrential rain, other acts of god and the like are not covered.  Also, any further damage of the related parts due to above said reasons will not be covered.”

14.     It is categorically provided in the said exclusion clause that cosmetic or surface corrosion from stone chips or scratches in the paint is not covered. Similarly it is categorically provided that the damages and/or surface corrosion problems due to the environment such as acid rain, airborne fall-out (chemicals, tree, sap etc., salt, hail, windstorms, lightning, floods, torrential rain, other acts of god and the like are not covered.

15.     What to talk of the exclusion clause, regarding any cosmetic of surface corrosion, damage and/or surface corrosion, we have not been able to notice a single spot either of deformation of the paint or because of the rusting of the body shell, which even does not appear in the photographs Ex. C14 and Ex. C15 which pertain to the left side front top and left side top back. As discussed earlier, the photographs appear to be deceptive in the matter of the impression because of the reflection of the clouds in the sky on account of the shining of the roof of the car as would appear in photographs Ex. C14 and Ex. C15. Had there appeared any such defect in the car, we would not have hesitated in giving a direction to the O.Ps to do the needful but when there has not appeared even a slightest existence of the spot either of paint or of rusting of the body shell, we find that the complainant has brought this complaint without any basis and therefore, the complaint is bound to fail and the same is hereby dismissed.

Pronounced.

Dated: 19.03.2015.

 

                                                Neelam Gupta                D.R. Arora

                                                Member                         President