Delhi

West Delhi

CC/15/854

BIJU JOSEPHD - Complainant(s)

Versus

DIVINE AUTOTECH PVT LTD. - Opp.Party(s)

09 Nov 2022

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION-III (WEST)

C-150-151, COMMUNITY CENTRE, JANAKPURI,

NEW DELHI-110058

 

Complaint no. 854/15

In the matter of:

Biju Josheph Panthamachel

RZ-51, Indira Park Extn. Part-1,

Uttam Nagar, New Delhi-110059                                                ......... Complainant

Versus

Divine Auto Tech Pvt Ltd. 

B-40/70, Najafgarh Road,

Opp. Moti Nagar Police Station, ND- 15                                           ...........OP-I

 

Renault India Pvt ltd.   

ASV Ramana Towers 37-38, 4^th Floor,

Venkatanarayana Road,

Chennai-600017

                                                                                                ...... OP-2

Renault Delhi West Service  

16, Rama Road, New Delhi-15                                                 ......... OP-3

DATE OF INSTITUTION:    JUDGMENT RESERVED ON:          DATE OF DECISION :

10.01.2017 01.11.2022 09.11.2022

 

Ms Sonica Mehrotra, President

Ms Richa Jindal, Member

Mr Anil Kumar Koushal, Member

 

Order passed by Ms. Richa Jindal, Member

 

 

 

 

 

 

 

 

 

ORDER

1. The complainant has filed a present complaint under section 12 of the Consumer Protection Act,1986. Brief facts of the complaint are as follows:

1. That the complainant purchased Renault Duster Diesel Model THP RXZ 110PS bearing Regn no. DL-8CAM-4200 from OP-1 the authorized dealer of manufacturing Company i.e. OP-2 on 30-9-15 for Rs. 13,90,000/- including registration charges, insurance etc. of present vehicle vide vide invoice no. SAL-INV-DEJA-16-000377.
2. That the said vehicle is having warranty of one year and extended warranty of one year for which Rs. 10,800/- has also being charged along with registration charges OP-3 is the authorized service centre of OP-2 i.e. manufacturing CO.
3. On 11-12-15, when the complainant was driving the car, it suddenly broke down due to problem in Gear Shifting. The complainant called on to the customer care of the OP No.2. On its direction the car was towed to the workshop of OP-3. On checking following problem was noted in the Job. card.

"On running condition gear not working. Sometime brakes less effective. Car bobbling at 50 Kmps requiring repairs."

4. OP-3 prepared an estimate of Rs 57140/- plus tax. The complainant pleaded that the vehicle was only two months old and has hardly run for 3500 k.m.
5. The complainant further pointed out that the car was under warranty for two years and it was wrong to charge for repair and replacement of part but the same was not accepted by the service center. The vehicle still in the workshop.
6. The complainant sent email on 12/12/2015 and even on 14/12/2015 to the company and to the service center, but there is no response. In addition to this, a complaint was registered by phone also vide registration no.4/01294361 but there was no response. Under these circumstances, the complainant paid for the repair/ replacement on 15-12-2015 under protest.
7. Charging for the repair/replacement of parts within less than three months of the purchase of the car and only on 3500Km and that too when there is a warranty for two years is a clear Deficiency in service and unfair Trade practice on the part of Ops. hence the present complaint. Wherein the complainant sought the following reliefs:

-OPs may be directed to repair the vehicle urgently without any charge.

- Pay compensation of Rs 25,000/- for harassment and mental torture

- the cost of litigation and miscellaneous expenses of Rs. 10,000/-.

2.       Accordingly, on 21/12/2015, after hearing arguments on admission notice was issued to OPs returnable on 23/02/2016, wherein OP No. 1,2, 3 appeared before the commission and filed reply wherein OP NO.2 & 3 took following preliminary objection :

1. That opposite parties no. 2 & 3, M/s RENAULT INDIA P LIMITED, [opposite party for short] is being represented by Mr. Galametz Axel, Chief Financial Officer of the Company. The latter is conversant with all facts, circumstances and events embarked upon in the complaint under reply on basis of records being maintained with such opposite party under ordinary course of business and further feedback obtained from opposite parties no.1&3 [selling & servicing dealer of opposite party herein]. The opposite party herein is the manufacturer &/or selling & after sales affiliate of the manufacturer of RENAULT DUSTER among other four-wheelers.
2. That opposite party submits that no statement, allegation, contention, submission, premise, or hypothesis contained in the complaint should be deemed to have been admitted merely because it has not been specifically denied. All statements, allegations, contentions, submissions, premises and hypothesis should be deemed denied unless expressly admitted in the reply.
3. That the complaint under reply may be dismissed as infructuous. The opposite party herein has been given to understand & believe that subject vehicle stands repaired & delivered to the complainant post repair. The instant complaint in the aftermath of such facts is no longer maintainable & reliefs not grantable. The instant complaint accordingly may be dismissed as infructuous or complainant in the alternate, be called upon to fetch appropriate amendments by way of incorporation of said subsequent or supervening developments.
4. That no cause of action has been pleaded against opposite party herein. The latter seeks to put forth that present matter &/or complaint is not a case of manufacturing defect but a case of deficiency of service attributed to servicing dealer-opposite party. The opposite party herein is not privy to repair of subject vehicle. In addition, the opposite party herein would further like to put on record that its relationship with opposite party-servicing dealer[s] is that of independent contractors (with each of such parties being an independent principal within domain of activities streamlined by the Dealership Agreement) than such parties being principal and agent respectively. The opposite party herein as such may not be held vicariously liable for acts of omission and commission, if any, claimed to have been occurred on the part of servicing dealer. The transaction &/or activity of providing repair is an activity falling within the domain of the servicing dealer.
5. That complaint under reply fails to ascribe any cause in terms of defect &/or deficiency towards opposite party herein. Support hereto may be obtained from pronouncement of the Hon'ble Apex Court in MARUTI SUZUKI INDIA LIMITED VS PURSHOTTAM LAL (HUF) & ANOTHER, Civil Appeal bearing number 708 of 2007 as decided on 22nd July, 2010. The complaint against opposite party herein hence merits being dismissed on this short ground alone.
6. That Unfair Trade Practice means & includes statements of the nature which are willfully made knowingly false, or made recklessly without honest belief in its truth, and made with the purpose to mislead or deceive (vide judgment of the Hon'ble Supreme Court in KLM Royal Dutch Airlines Vs Director General (I&R) reported as 2009 (9) SCC 239) None of the statements claimed to have been made, in case held believable, is misrepresentative &/or qualifies as indulgence in Unfair Trade Practice. The complaint under reply hence warrants being dismissed on this short ground alone.
7. To relate clutch wear to manufacturing defect in a vehicle is an absolutely fragile proposition; such wear, on the contrary, is directly related to one or more (bad) driving habits enlisted below:
   1. Riding the clutch while driving; slipping the clutch excessively when starting out or when creeping along in traffic sends the temperature of the clutch soaring. If the facings get too hot, they may start to burn giving off an odour similar to burnt toast. If the clutch isn't given a chance to cool, the disc may be ruined along with the flywheel and/or pressure plate;
8. Not letting the clutch pedal out firmly and quickly; Hauling loads beyond manufacture’s ratings;
9. Coasting down hill while holding the clutch instead of putting the transmission to neutral and releasing the clutch in a depressed mode
10. When the clutch disc becomes worn, the reduction in thickness may reduce the clamping force exerted by the pressure plate. Most diaphragm clutches actually exert more pressure as the disc wears due to the geometry of the spring and release mechanism. But once the disc is worn beyond a certain point, pressure starts to drop, increasing the risk of slipping under load. With older coil spring-style clutch covers, pressure drops in direct proportion to disc wear.
11. When a clutch starts to slip, the slippage will be most noticeable when the engine is under load, as when lugging at low speed in a high gear, when driving up a hill, when accelerating to pass another vehicle or when towing a trailer. The more the clutch slips, the hotter it gets and the more it wears. This accelerates the problem even more and may result in additional damage to the flywheel and pressure plate.
12. The juxtaposition of service history qua subject vehicle with literature above may cause opposite party herein to deduce the following chronology,
13. The subject vehicle is brought to dealer premises by tow crane on 11th December, 2015; the concern reported is "gear not working" which is tracked down by the dealer to clutch wear; other complaints include "brakes less effective" & "car wobbling" [while the first is not found, the second is treated by subjecting the wheels to wheel balancing & alignment];
14. The dealer recommends clutch overhaul;
15. The complainant's claim to repair &/or replacement of affected parts under Manufacturers' Warranty &/or without cost is rejected; the estimate of repairs is issued to the complainant & latter called upon to express his consent to replacement of affected parts under cost which he does & repairs undertaken [the estimate of cost is appended to the complaint at Annexure 4]; the letter of approval as issued by the complainant is appended alongside list of documents to present reply;
16. The subject vehicle is repaired post agreeability of the complainant to pay for cost thereof; the vehicle post repair is delivered to the complainant vide repair invoice dated 11th December, 2015 in the sum of 256,910.00; the complainant to impugn such repair &/or cost entailed is per se misconceived & without merit; this is evinced no less maturely from documents reportedly executed by the complainant prior to & post repair [the copy of the approval letter & satisfaction note executed by the complainant is a case-in-point]; the opposite party herein has been given to believe & understand that repair upon subject vehicle preceded complainant executing repair order among other standard documents; incidentally, none of the said documents feature &/or testify to his claim about repair having been undertaken by the dealer unilaterally &/or without complainant's consent &/or under illusion of Warranty being applicable thereon; the claim, if true, would have under no conceivable possibility followed complainant executing such document(s) &/or allowing his protest to go unnoticed & unrecorded, such element(s) as the opposite party herein would like to aggressively assert manifests conspicuous silence qua claim now being agitated by the complainant, without prejudice hereto, the opposite party herein would like to lay emphasis upon following facets, (i) the manufacturer herein is not into retail service & repair, (ii) the service &/or repair is an activity falling within the exclusive domain of a servicing dealer like opposite party no.1 & (iii) the subject vehicle was repaired & repair cost tendered by the complainant to opposite party-dealer than opposite party herein;
17. The imminent cause for failure of clutch plate and attendant parts is attributable to abuse &/or negligence &/or inappropriate driving habits in terms of sustained clutch overriding (the opposite party herein further expresses its readiness to have the vehicle referred for examination &/or opinion to an independent expert; still again, the complainant post repairs was returned affected components which may be referred to examination by an independent expert); such failure as the opposite party herein would like to categorically state is unconnected to mileage done or period elapsed from purchase; abuse, as the opposite party herein would like to reiterate, has the potential to speedily divest any tangible chattel of its goodness, robustness & resistance; the complainant to thus agitate his claim based upon the four-wheeler being relatively new in terms of mileage & period is misconceived per se & sans substance;
18. The allegation of deficiency in service is misconceived too & without merit;
19. The clutch plate is a wearable component &/or consumable and not Warranty treatable (the relevant extract of Manufacturer's Warranty is further appended to list of documents being filed with present reply); the clutch is equally vulnerable to abuse as has occurred vide case at hand; an experience of howsoever many years behind the wheel is certainly not suggestive or corroborative of sound driving skills (this has reference to the complainant suggesting in one of his correspondences about his driving since 1974);
20. The damage to flywheel is consequential; the damage thereto stands emanated from factor(s) referred to in literature above; such factors have been referred to vide extracts above & not repeated here for the sake of brevity;
21. The claim about opposite party herein being deficient in rendering of services singly or jointly with other opposite party is incorrect hence denied; the claim about affected spares being inherently defective &/or product of defective workmanship finally leading to consequential replacement is denied no less (without prejudice hereto, the opposite party herein further expresses its readiness to have the vehicle referred for examination &/or opinion to an independent expert; still again, the complainant post repairs was returned affected components which may be referred to examination by an independent expert);
22. The claim about rejection of repair under Manufacturers' Warranty as being illegal or arbitrary is misconceived per se; while the four-wheeler was under Warranty, the opposite party herein would like to emphasize that Warranty is not unconditional or absolute as sought to be made out but subject to certain terms & conditions which the complainant has been astute enough to conceal &/or withhold &/or not refer to; the complete text of Warranty Policy is further appended alongside list of documents to present reply with relevant extract reproduced in manner herein below,
23. WARRANTY CERTIFICATE FOR NEW VEHICLES

-The Renault New Vehicle Warranty does not cover & Renault India Private Limited (RIPL) &/or Renault authorized workshop shall not be responsible for the following,

-Replacement of parts due to wear & tear resulting from use of the vehicle or from its mileage including but not limited to clutch, shock absorbers, wiper blades, brake drum, brake disc, brake pads, brake shoe, lamps, plugs, belts, linings, bulbs, fuses, parts made of rubber etc. Damage or failure resulting due to following causes,

Poor vehicle maintenance in particular if the instructions for treatment, the frequency of maintenance or care to be applied to the vehicle set out in the maintenance schedule .... has not been observed:

Due to lack of use/operation of vehicle over prolonged period; Misuse, abuse, negligence, improper driving habits, theft etc. of the vehicle;

Damage from stress like use of vehicles in races, rallies etc.;

Use of parts other than Renault genuine parts;

Any device &/or accessories not supplied by RIPL;

Modifications, alterations, tampering or improper repair;

Parts use in applications of which they were not designed or not approved by RIPL;

Slight irregularities not recognized as affecting quality or function of the vehicle or parts, such as slight noise or vibrations, or items considered characteristic of the vehicle.

Based hereupon, the contents contained in paragraphs under reply are wrong & misconceived hence denied by opposite party herein. Without prejudice hereto, the opposite party herein seeks to put on record that subject vehicle post repair has been delivered to the complainant. The complaint accordingly has become infructuous and may be dismissed as such.

In the above stated facts and circumstances, it is most respectfully prayed that this Forum may most graciously be pleased to dismiss the complaint under reply with imposition of exemplary costs upon the complainant in favour of the opposite party herein.

2. OP no.1 took the following objections in their reply as under

1. The complaint under reply may be dismissed as infructuous. the subject vehicle stands repaired & delivered to the complainant post repair. The instant complaint in the aftermath of such facts is no longer maintainable & reliefs are not grantable.
2. The instant complaint accordingly may be dismissed as infructuous or the complainant in the alternate, be called upon to fetch appropriate amendments by way of incorporation of said subsequent or supervening developments. No cause of action has been pleaded against the opposite party herein. The latter seeks to put forth that the present matter &/or complaint is not a case of manufacturing defect but a case of deficiency of service attributed to servicing dealer-opposite party.
3. The opposite party herein is not privity to repair the subject vehicle. In addition, the opposite party herein would further like to put on record that its relationship with the opposite party-servicing dealer[s] is that of independent contractors (with each of such parties being an independent principal within the domain of activities streamlined by the Dealership Agreement) then such parties being principal and agent respectively.
4. The opposite party herein as such may not be held vicariously liable for acts of omission and commission, if any, claimed to have occurred on the part of servicing dealer. The transaction &/or activity of providing repair is an activity falling within the domain of the servicing dealer.
5. That complaint under reply fails to ascribe any cause in terms of defect &/or deficiency towards the opposite party herein. Support hereto may be obtained from the pronouncement of the Hon'ble Apex Court in MARUTI SUZUKI INDIA LIMITED VS PURSHOTTAM LAL (HUF) & ANOTHER, Civil Appeal bearing number 708 of 2007 as decided on 22nd July 2010. Unfair Trade Practice means & includes statements of the nature which are willfully made knowingly false, or made recklessly without an honest belief in its truth, and made with the purpose to mislead or deceive (vide judgment of the Hon'ble Supreme Court in KLM Royal Dutch Airlines Vs Director General (I&R) reported as 2009 (9) SCC 239) None of the statements claimedto have been made, in the case held believably, is misrepresentative &/orqualifies as indulgence in Unfair Trade Practice. The complaint under reply hence warrants being dismissed on this short ground alone.
6. It is stated that the job card was open at service centre at the request of the customer and the requested work of the customer noted down on the customer interaction sheet same in the case of the complainant. After work request the vehicle was inspected by the technicians of the company and the technician found that the gear box was OK and perfect and real problem in the clutch due to which the gear was not working properly and the clutch needed overhaul and estimate given to the customer and after taking approval from the customer i.e. complainant in the present case clutch kit was replaced and thereafter the vehicle perfectly OK and there no problem about gear or clutch is reported till date.
7. The vehicle was only two months old and has hardly covered 3500 Kms and still under warranty and was not accepted by the service. However it is submitted that the complainant has already taken the delivery of vehicle on 18.12.2015. It is further submitted that the clutch of the is not covered under warranty as per warrant terms and conditions of Renault India Pvt. Ltd. and this clutch damages may happen due to overriding (abnormal use) of clutch.

 

3.       After going through the material placed on record, without going into merits, it reveals that the main question involved in the present complaint is whether any deficiency of service has been made out by OP.  Complaint is maintainable under Consumer Protection Act, 1986. Clearly, the only aspect for consideration before us is whether the Complainant is liable to be dismissed for being infructuous.

•  

 

HON'BLE SUPREME COURT in the case titled “ Hewlett Packard India Ltd. Vs Shri Ramachander Gehlot” in CA No. 7107/2003 decided on 16.02.2004 held that

 

"The issue of maintainability has to be decided before admitting or hearing the matter on merit.”

 

8.  in FIRST APPEAL NO. 337 OF 2017 in a case titled “KOSHY VARGHESE THAVALATHI HOUSE, MELE VETTIPURAM, PATHANAMTHITTA Versus HDFC BANK LTD. & 2 ORS.” Held that

 

“ It is settled law that the question in which law point is involved can be decided at any stage of the proceedings of the case.

In view of the above, the present Appeal as also the Complaint filed by the Appellant/Complainant before the State Commission is dismissed as being not maintainable with no order as to cost.”

 

5.     We after going through the complaint as well as the documents on record are of the considered opinion that the OPs & Complainant have already admitted that OP had already made the payment for repairs of the car in question before filing the complaint on 15/12/2015 Complainant filed a week thereafter but he did not amend the prayer clause by way of seeking refund. As per settled Law (General Motors India Pvt. Ltd. Vs Ashok Ramnik Lal Talot reported in (2014) CPJ 1 SC  nothing can be paid what has not been prayed , whereas the complainant sought relief against OP that his car may be repaired free of cost, In Fact, the OP also in their reply specifically stated that the complainant had made the payment and took the possession of a car. In view of this admittedly, no grievance is left out as complainant has been rendered infructuous in view of main relief exhausted.

 

6.     No compensation for harassment, litigation expenses can be awarded in view of lack of ground of any deficiency of service against OP. In light of the judgment discussed above & the legal proposition, we hold that the present complaint is not maintainable being infructuous against ops for deficiency in service and unfair trade practice against the OPs. Since the complainant has already got the car repaired after making the payment before the filing of the complaint and this fact was very well in the knowledge of the complainant also. We, therefore dismiss the present complaint for want of  any cause of action remaining against OPs.

 

7.     We, therefore, dismiss the present complaint as infructuous

8.     Let a copy of this order be sent to each party free of cost after receiving the application for the certified copy as per the direction received from the Hon’ble State Commission.

 

9.     File be consigned to the record room.

10.   Announced on 9.11.2022.

 

 

 

Richa Jindal                             Anil Kumar Koushal                   Sonica Mehrotra

(Member)                                            (Member)               (President)