Punjab

Ludhiana

CC/15/86

M/s Bedi Pump Store - Complainant(s)

Versus

Dada Motors - Opp.Party(s)

Harvinder Pal Adv.

23 Nov 2016

ORDER

a Limited, Gateway Building, Apollo Bunder, Mumbai-400039 India.

…Opposite parties

 

    (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS.VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :        Sh.Harvinder Pal Singh, Advocate

For Op1                         :        Sh.Vikas Gupta, Advocate

For OP2                         :         Sh.Rajiv K.Bhatia, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                          Complainant through its proprietor Sh.Jaspreet Singh Bedi, filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter in short to be referred as ‘Act’) by claiming that he purchased SUV Bolero SLX car manufactured by OP2 bearing chassis No.E5C55733 and Engine No.GPE4B89435 from OP1 on 4.3.2014. This car was purchased for domestic use. After purchase, complainant drove the vehicle for 1675 Kms upto 15.4.2014 and thereafter, the vehicle suddenly stopped on the road, due to which, complainant called upon OP1 for informing about the starting problem of the vehicle. OP1 sent the help at the place, where the vehicle was stopped due to fault. After towing the vehicle, the same was brought to the workshop of OP1. After repair, Op1 handed over the vehicle to the complainant with the assurance that the vehicle will not give problem in future. However, when the complainant enquired the reason of non start of the vehicle, then officials of OP1 did not submit any satisfactory reply. Copy of job card was not handed over, but bill dated 15.4.2014 was given to the complainant. On 5.6.2014, complainant availed free first service of the vehicle by paying Rs.3397/-, when the vehicle covered distance of 4879 Kms. On 9.8.2014, again vehicle started giving the same problem of non start and stopping on the road. Information again was provided to OP1, who sent help at the place where the vehicle was lying. Vehicle again brought to the workshop after towing and repair of the same done and then vehicle handed over to the complainant by OP1 with the same assurance. Reason for the problem was not disclosed and nor any satisfactory reply given to the complainant. Copy of job card even was not supplied this time also. However, copy of bill dated 9.8.2014 alone was handed over to the complainant. Complainant kept on facing the problem of becoming the vehicle non-functional on the road. Officials of OP1 failed to diagnose the  problem of the vehicle. The problem again repeated on 13.8.2014 and 30.8.2014. Only bills were given, but without job cards on these dates also. On 8.9.2014, complainant along with his family visited Panipat for attending the family function, but the vehicle stopped functioning at Rajpura. Complainant first called officials of OP1 namely Ramesh and thereafter, on his instructions, complainant gave call to toll free number of OP2 for road side assistance. Dealer of OP2 at Rajpura sent the officials for assistance and after putting much effort, they were able to start the vehicle. They further advised the complainant to take the vehicle to the workshop of OP2 for rectifying the problem. Amount of Rs.400/- was charged this time. Complainant had to hire taxi for his family members for attending the function at Panipat. Despite that the complainant had to stay on the road side at Rajpura for 3-4 hours. As per advise of officials of dealer of OP2, complainant took the vehicle to dealer of OP2 at Panipat i.e.P.P.Motors. The vehicle was retained there for 2-3 hours and without replacing any spare parts, the vehicle was handed over to the complainant by stating that they had done the running repair of the vehicle. Though, nothing was charged from the complainant, but job card was not provided to the complainant and nor reason of the engine becoming non functional explained to the complainant. After reaching at Ludhiana, complainant brought the vehicle at the workshop of OP1, who retained the same and returned the same after repair. This vehicle was retained by OP1 for 4 days at the time, when the vehicle covered the distance of about 9182 Kms. Neither the job card was handed over to the complainant and nor the problem of the vehicle disclosed to the complainant, but bill of 8.9.2014 alone was given to the complainant. After driving the vehicle for about 100 Kms, the same again stopped on 12.9.2014, when it travelled distance of 9281 Kms. On reporting the matter to OP1, the vehicle again retained for 12 days for running repair, but neither the problem was disclosed to the complainant and nor the job card was handed over to the complainant. Bill raised on date 12.9.2014 alone was given to the complainant. Complainant got second free service done on 6.10.2014, when the vehicle had travelled distance of 10,579 Kms. Complainant paid Rs.1355/- this time qua which bill was issued. On 14.1.2015, again the vehicle started giving the said problem of stoppage on the road and on information to OP1, the same activities of towing and repair carried out, but without satisfactory reply about the problem or handing over the job card. Only bill of 14.1.2015 was given to the complainant. Same problem faced by the vehicle again on 27.1.2015 after travelling the distance of 13909 Kms. Same episode was repeated by handing the bill, but not the job card. Deficiency in service on the part of OP1 pleaded by claiming that they have not disclosed about the defect in the vehicle and nor the job cards handed over as referred in detail above. It is claimed that due to manufacturing defect, OP2 has cheated the complainant resulting in payment of huge amount by him. Due to this reason, complainant could not get the vehicle registered with DTO. Complainant claims that he does not want to retain the vehicle because neither the defect detected nor diagnosed. Prayer made for directing Ops to return back the price of the vehicle namely Rs.7,30,000/- along with interest or in the alternative, to direct Ops to change the vehicle with new one. Compensation for mental harassment and agony of Rs.2 lac and for mandatory loss of Rs.50,000/- sought. Rs.1 lac as penalty for providing defective services and Rs.22,000/- as compensation for legal fee etc., paid by the complainant even sought.

2.                In written statement filed by OP1, it is pleaded interalia as if the complaint in the present form is not maintainable; complainant is not a consumer because the vehicle purchased for commercial purpose of the company i.e Bedi Pump Store. Op1 alleged to be falsely dragged in the complaint for extorting money. It is admitted that complainant brought his vehicle to OP1 on 12.3.2015 and thereafter, road test carried out by making the vehicle to run for 141 Kms. No fault was found in the vehicle and that is why, the complainant took the delivery of the vehicle for self drive. It is claimed that OP1 checked the vehicle and provided due services free of cost in warranty period. These services were provided to the complainant to his satisfaction and as such, OP1 has not played any game with the complainant. It is denied that      the vehicle was purchased by the complainant for domestic use. It is denied that the officials of OP1 did not hand over the job card or did not furnish the satisfactory reply as alleged in the complaint. Admittedly, free service of the vehicle was done to the complete satisfaction of the complainant. Providing of services on 9.8.2014 to the complainant as per his satisfaction is also admitted. Vehicle was duly verified and inspected on 9.8.2014. Story regarding repeated episodes on 13.8.2014 and 30.8.2014 denied. It is claimed that on 8.9.2014, when the vehicle brought to the workshop of OP1, the same was duly checked and thereafter, the same was handed over to the complainant to his satisfaction. Admittedly, the vehicle was brought by the complainant himself on 12.9.2014 to the workshop of OP1. Due services to the satisfaction of the complainant were provided on this occasion also and thereafter, the vehicle was handed over to the complainant. Admittedly, second free service of the vehicle was got done by the complainant on 14.1.2015, but other allegations of non submitting satisfactory reply or non handing over the job cards denied.

3.                In separate written statement filed by OP2, it is claimed that relationship between Op1 and OP2 are on dealer to dealer basis and there was no privity of contract between the complainant and OP2. OP2 is not responsible for any act, conduct or omission or commission by dealer. Complainant is not consumer of OP2 because vehicle purchased for commercial establishment working for earning profits. Complainant has failed to prove any manufacturing defect because no expert opinion tendered. Manufacturing defect has to be proved and cannot be assumed. Complainant himself had been guilty of using bad quality of fuel in the vehicle. It is claimed that the complainant had presented the distorted and afterthought facts. No cause of action accrued to the complainant against OP2. Rs.3397/- were charged on 5.6.2014 for first free service as the cost of consumables like engine oil, oil filters etc. On 9.8.2014, the vehicle was checked by dealer and on diagnose, nothing was found because the vehicle was perfectly fine. It is denied that the vehicle towed and brought to the dealer. On 9.8.2014, the complainant was recommended to use fine quality of fuel and not adulterated one. Complainant was advised to be careful in future. Again on 13.8.2014 and 30.8.2014, no defect was  reported in the vehicle. However, the complainant was again recommended not to use the adulterated fuel. As and when the vehicle brought to the dealer, the same was found in OK condition. Suspension of the vehicle was found fine(OK) on 30.8.2014. On thorough checking, no defect was found in the vehicle on 30.8.2014. Again on 12.9.2014, on checking, it was found that fuel used in the vehicle was adulterated which has affected the injector. Fuel injector was replaced under warranty. Complainant himself remained negligent because of using the bad quality of fuel in the vehicle. Incident of stoppage of the vehicle at Rajpura denied by claiming that if such incident would have actually taken place, then the complainant would  have impleaded the dealer at Rajpura as party. Service Gate Pass is given to the customer as and when the vehicle enters in the dealership premises, but no such    record produced qua entry of the vehicle in dealership premises of OP2 at Rajpura. Again on 8.9.2014, no defect was found in the vehicle and the same was returned after thorough inspection. On 12.9.2015(real date as 12.9.2014) when the vehicle came with missing problem, at that time again it was found that problem was due to use of bad quality/adulterated fuel resulting in impact on the engine. On checking of the vehicle on 12.9.2014, it was found that adulterated fuel used by the complainant resulting in affecting on the injector, replacement of which took place. No problem was found in the vehicle on 6.10.2014 during second service. Rs.1355/- were charged for consumable items like engine oil and change of filters etc. On 14.1.2015, the vehicle did not report the missing problem, albeit brought by the complainant with problem in the speed meter because the vehicle does not cross the speed of 160. However, it was reported that speed does not exceed 160 and is fixed at 160. The pointed out defects actually has not been reported and found. On 27.1.2015, when the vehicle reported, then clutch sleev cylinder was found leaking. Said part was not available immediately qua which information was given to the complainant. After procuring the same, the same was replaced and the vehicle was delivered to the complainant. Thereafter, clutch problem never reported by the complainant. On 12.3.2015, the road test was carried out by running the vehicle to distance of 141 Kms and no defect was found in the vehicle. Earlier problem of missing in vehicle arose because of use of bad quality of fuel. If complainant has not got the vehicle registered till date, then he himself violating the provisions of Motor Vehicles Act.

4.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C13 and thereafter, his counsel closed the evidence.

5.                On the other hand, Mr.Indermohan Pal Singh, Law Officer of OP1 tendered in evidence his affidavit Ex.RA along with documents Ex.R1 to Ex.R18 and thereafter, closed the evidence.

6.                Counsel for OP2 tendered in evidence affidavit Ex.RW2/A of Sh.Mahendru Pratap Singh, Authorized signatory along with documents Ex.R2/1 & Ex.R2/2 and then closed the evidence.

7.                          Written arguments submitted on behalf of OP2 alone. Oral arguments of counsel for parties heard and records gone through minutely. 

8.                First and foremost contention of counsel for Ops is that the vehicle in question purchased for commercial purpose in the name of firm and as such, complainant is not a consumer with meaning of section 2(d) of Consumer Protection Act, 1986. Retail invoice Ex.C1 certainly proves that the vehicle in question purchased in the name of Bedi Pump Store c/o Jaspreet Singh Bedi, Dholewal Chowk, G.T.Road, Ludhiana for Rs.7,23,991/- and that is why all the subsequent job sheets Ex.C4 to Ex.C13 or Ex.R2 to Ex.R17 issued in the name of Bedi Pump Store. Even temporary registration certificate and delivery challan was issued in the name of M/s Bedi Pump Store is a fact borne from the contents Ex.C2 and Ex.C3. Despite purchase of the vehicle in the name of M/s Bedi Pump Store, it is pleaded case of the complainant that M/s Bedi Pump Store is the proprietorship concern owned by Sh.Jaspreet Singh Bedi. Further, it is pleaded case of the complainant that the vehicle was purchased for domestic use. A proprietor of a concern, if purchases vehicle for domestic use in the name of proprietorship concern, then he is not bound to use the vehicle for the proprietorship concern business only. Rather, a sole proprietor of a concern by paying amount from the proprietorship concern may use the vehicle for domestic need also and as such, case of the complainant is fully believable that the vehicle in question was purchased by the complainant in the name of proprietorship concern for domestic use. Even as per law laid down in case Tata Motors Ltd vs. Sharad and another-2016(3)CLT-30(N.C.), if the vehicle purchased in the name of proprietorship concern by the complainant himself, then case of OP not believable that the vehicle purchased for commercial purpose. Besides, ratio of above cited case provides that no purchaser of a new vehicle would ever think that he would be going to garage to get the vehicle repaired so often even if the repairs may be minor and as such, for inconvenience caused due to suffered mental agony, complainant entitled for some of the hefty compensation is also the ratio of above cited case. In the case before us also it is  pleaded and proved case of the complainant through affidavit Ex.CA  that the vehicle purchased in the name of proprietorship concern is used for domestic need and as such, certainly the complainant is consumer within the meaning of Section 2(d) of the Act. Benefit of ratio of case titled as Pharos Motors Pvt. Ltd. vs. Tata Motors Ltd and others-2014(3)CPC-359(N.C.) not available to the counsel for Ops because after going through the ratio of this case, it is made out that the car in question purchased for use of Director of the company and he used the same for commercial purpose of the company, due to which, it was held that car cannot be said to have been purchased for earning livelihood by self employment. That is not the position in the case before us because no documentary or other evidence produced to show that the car in question used by the complainant for commercial purpose. Keeping in view the nature of business of M/s Bedi Pump Store of supplying fuel, it is obvious that the purchased car in question may not have been used for carrying fuel and as such also case of the complainant believable that car in question purchased for domestic use and not for commercial purpose. For the same reason, benefit from ratio of case titled as Shivom Projects Private Limited vs. Toyota Kirloskar Motor Pvt. Ltd. and others-2015(1)CPJ-422(N.C.) can’t be gained by the counsel for OP2 because perusal of ratio of above cited case reveals that admittedly the vehicle in question was not purchased exclusively for the purpose of earning livelihood of the driver or for his personal use, but he was to use the car for commercial purpose only. There is no such admission on the part of complainant in the case before us and as such, facts of the reported case are quite distinct than those of the case before us. Ratio of case titled as Marooti Filling Station, Dealer, Indian Oil Corporation Limited vs. Galaxy Outdoor Advertising Solutions Pvt. Ltd.,-2015(3)CPJ-27(Hon’ble State Consumer Disputes Redressal Commission, West Bengal) provides that private limited company on purchase of the car for Directors is to use the same for commercial purposes because private limited company is unlike the proprietorship concern. So, position of proprietorship concern stands on different footing than that of public limited company or private limited company. Public Limited company or Private Limited Company is run through its Board of Directors and having distinct identities vis-a-    vis the company, due to which, it has to be held that in case, car purchased in the name of the complainant, then the same to be deemed for commercial purposes. So, ratio of this case instead of supporting the case of OP2, support the case of complainant that complainant concern being proprietorship concern virtually purchased the car for domestic use. In view of this, present complaint certainly is maintainable because the complainant is a consumer.

10.              Bone of contention remain as to whether owing to repeated repairs of the purchased car, inference of manufacturing defect liable to be drawn or not? Certainly, the complainant has not produced on record any expert opinion to establish the manufacturing defect and as such, the complainant has not adduced any evidence       to prove the manufacturing defect in the car. Manufacturing defect certainly          cannot be assumed, but the same has to be proved by leading convincing evidence. Submission of counsel for the OP2 in this respect certainly has force. Even after going through produced job sheets, it is made out that the defect in the car is not irreparable in nature, but the same may have been surfaced owing to use of adulterated fuel. However, convincing evidence qua the defect being erupted owing to use of adulterated fuel is not lead and as such, Ops failed to prove that repairs carried out repeatedly due to fault of complainant alone.

11.              From the perusal of job sheets Ex.C4=Ex.R2; Ex.C5=Ex.R3; Ex.C5(marked twice)=Ex.R4; Ex.C7=Ex.R6; Ex.C8=Ex.R7; Ex.C9=Ex.R8; Ex.C10=Ex.R9; Ex.C11=Ex.R12; Ex.C12=Ex.R10; Ex.C13=Ex.R11 and Ex.R14 to Ex.R17, it is made out that vehicle taken for running repairs on 15.4.2014, 9.8.2014, 13.8.2014, 30.8.2014, 8.9.2014, 12.9.2014, 14.1.2015, 27.1.2015, 27.3.2015, 4.4.2015, 9.4.2015 and 1.5.2015 respectively. First free service was done on 5.6.2014, but second on 6.10.2014 and third on 1.7.2015 are the facts borne from the contents of Ex.C5=Ex.R3; Ex.C10=Ex.R9 and Ex.C13. First to third free services were conducted after acceptance of charges of Lubrication/oil only and as such, the same shows as if due services provided by OP1 to the complainant on demand. As vehicle in question taken repeatedly for running repairs and that is why OP1 took cudgels of road test on 12.3.2015 is a fact borne from the contents of Ex.R13=Ex.R2/2. 141 Kms of road test was taken, but no fault was found in the vehicle and thereafter, the vehicle was handed over to the complainant for self drive is the endorsement made on these job cards Ex.R13=Ex.R2/2. This reflects that OP1 on pointed out complaint of stoppage of vehicle during drive, tried to provide the due services.

12.              Through the above referred job cards, running repair was done time and again. Mentioning of defects for such running repair not pointed out in Ex.C4=Ex.R2; Ex.C5=Ex.R4; Ex.C6=Ex.R5; Ex.C7=Ex.R6; Ex.C8=Ex.R7 and Ex.C9=Ex.R8 at all. No amount was charged for carrying out these running repairs through these job cards on the days referred above. So, these running repairs carried out during period from 15.4.2014 to 23.9.2014 without mentioning the defects or the parts changed, but those were carried out without charging anything from the complainant.

13.              Ex.R10=Ex.C12 is the document which shows that running repair was of washing and cleaning as well as for curing problem disclosed as of engine running over race. Problem of over race is different than that of problem of stopping on the way during driving and as such, this document does not support the claim of the complainant qua stoppage of the vehicle on the way itself.

14.              Ex.R11 of date 28.3.2014 is a document disclosing as if the vehicle goes off during running time and as such, problem of vehicle stopping during running time pointed out for the first time on 28.3.2014 by the customer. The vehicle was purchased on 24.3.2014 as disclosed by Ex.C1, the invoice and as such, problem of stopping of the vehicle during running time pointed out after 4 days of purchase of the vehicle. Relay adjustment was done on 14.1.2014 is a fact borne from the contents of Ex.R12. Ex.R14 of date 27.3.2015 shows some problem in the speed meter, whereas Ex.R16 of date 9.4.2015 shows racing problem and dash board noise, but Ex.R17 of date 1.5.2015 shows change of paddle. So, the entire documentary evidence produced on record establishes that problem of stopping of vehicle on the way pointed out once only, but other problems in the speed meter or qua the dash board noise were also pointed out. Those problems do not reflect as if there is manufacturing defect in the vehicle because manufacturing defect is that defect, which is of in built.

15.              Ex.R18 is the document which shows that second injector was replaced and fuel quality after checking was found OK. Again in the second item of Ex.R18, mention of replacement of the faulty injector made and thereafter, vehicle was found OK. In item No.5 and 6 each of Ex.R18 mention made qua replacement of second injector. In the short description of the defect and customer complaint reflected on page   no.2 of Ex.R18, mention made as if complainant disclosed about the starting problem and necessity of replacement of common rail for curing starting problem. So,            the entire documentary evidence produced on record shows that there was starting problem once reported only, but Ops tried to remove those defects. No report produced by the Ops to show that complainant had been using adulterated fuel in the vehicle resulting in starting problem or problem of stoppage during running. Even no document has been produced to establish that adulterated fuel used was the cause resulting in repeated change of the second injector. No advise even shown to be tendered in writing to the complainant to abstain from using the adulterated fuel. Being so, Ops failed to establish that adulterated fuel alone caused the problem in the injector of the vehicle time and again. However, from the above pointed discussion, it is made out that manufacturing defect in the vehicle is not proved at all. Even if such manufacturing defect is not there, despite that the complainant had to go for running repairs repeatedly and as such, neither the dealer nor the manufacturer can escape from liability of rectifying the defects after tracing out the same. A person purchases a vehicle for enjoyment, use and convenience. However, if a customer has to visit the dealer again and again for rectification of the defects in the injector, then certainly he faces lot of inconvenience and as such, by keeping in view the ratio of above cited case titled as Tata Motors Limited vs. Sharad and anothers(Supra), ends of justice warrant that heavy compensation for mental harassment of Rs.40,000/- at least should be allowed in favour of the complainant and against Ops. A manufacturer cannot escape from liability, if the dealer fails to repair the vehicle, despite repeated visits by the customer. If at all, the defects in the injector surfacing time and again, then it is the responsibility of the dealer to contact the manufacturer for replacement of such part or parts as are essential for making the vehicle functional properly. So, OP2 must join OP1 in curing the defect, for which, complainant had to undergo trauma of repeated visits.

16.              Therefore, as a sequel of the above discussion, present complaint allowed in terms that Ops will repair the car in question free of costs for making it functional properly within 30 days from the date of receipt of copy of this order. Compensation for mental harassment of Rs.40,000/- (Rupees Forty Thousand only) and litigation expenses of Rs.10,000/- (Rupees Ten Thousand only) more allowed in favour of complainant and against Ops. Further it is directed that in case any part of the car is to be replaced for due repair, then OP2 (manufacturer) will replace that part and will join OP1 in due repair. Payment of compensation and litigation costs be made within 30 days from the date of receipt of copy of the order. Liability of Ops held joint and several. Copies of the order be supplied to parties free of costs as per rules.

17.                        File be indexed and consigned to record room.

 

                                      (Vinod Bala)                     (G.K.Dhir)

                              Member                            President

Announced in Open Forum

Dated:23.11.2016

Gurpreet Sharma.

 

 

 

M/s. Bedi Pump Store                                CC/15/86

 

Present:       Sh. Harvinder Pal Singh, Advocate for complainant.

                   Sh. Vikas Gupta, Advocate for OP1.

                   Sh. Rajvi K.Bhatia, Advocate for OP2.

                  

                   Arguments heard. Vide separate detailed order of today, complaint allowed in terms that Ops will repair the car in question free of costs for making it functional properly within 30 days from the date of receipt of copy of this order. Compensation for mental harassment of Rs.40,000/- (Rupees Forty Thousand only) and litigation expenses of Rs.10,000/- (Rupees Ten Thousand only) more allowed in favour of complainant and against Ops. Further it is directed that in case any part of the car is to be replaced for due repair, then OP2 (manufacturer) will replace that part and will join OP1 in due repair. Payment of compensation and litigation costs be made within 30 days from the date of receipt of copy of the order. Liability of Ops held joint and several. Copies of the order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

                                                (Vinod Bala)                                     (G.K. Dhir)

                                                Member                                   President

                                                                                                23.11.2016.