Date of Filing : 13.03.2019 & 08.04.2019
Date of Disposal : 24.06.2021
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED THIS THE 24th DAY OF JUNE-2021
PRESENT
Mr. KRISHNAMURTHY.B.SANGANNANAVAR : JUDICIAL MEMBER
Mrs M.DIVYASHREE : LADY MEMBER
APPEAL NO.439 & 693 of 2019
- M/s Force Motors Ltd.,
Personal Vehicle Division,
Mumbai-Pune Road,
Akurdi, Pune-411 035.
Rep/by its Manager.
- M/s Force Motors Ltd.,
Plot No.03, Sector No.1,
Pithompur (Industrial Estate),
Pithompur District: Dhar.
Rep/by its Manager.
… Appellants in Appeal No.439/2019
(By Sri/Smt. Siddi Law Associates)
-Versus-
- Dr. Venkatareddy Malipatil,
S/o Basavareddy Malipatil,
Aged about 60 years,
R.I.M.S Hospital,
Raichur District.
- M/s Mahalakshmi Motors,
Sr.No.36/1C, Manjari Farm,
Pune-Sholapur, Highway
Tal: Haveli Dist:Pune-412 307.
..Respondents in appeal No.439/2019
(R1-By Sri/Smt. Rudhrabhushan.C.B Advocate)
Dr. Venkatareddy Malipatil,
S/o Basavareddy Malipatil,
Aged about 58 years,
R/o A-10, Doctors Quarters,
OPEC Campus, Hyderabad
Road, Raichur-584 102,
Karnataka.
… Appellant in Appeal No.693/2019
(R1-By Sri/Smt. Rudhrabhushan.C.B Advocate)
- Mahalakshmi Motors,
Sr.No.36/1C, Manjari Farm,
Pune-Sholapur, Highway
Haveli District Pune-412 307.
2. Force Motors Ltd.,
Personal Vehicle Division,
Mumbai-Pune Road,
Akurdi, Pune-411 035.
By its Manager.
- Force Motors Ltd.,
Plot No.03, Sector No.1,
Pithompur (Industrial Estate),
Pithompur District Dhar
Madhya Pradesh
By its Manager.
- Sri. Santosh Lalvani,
Force Motors Ltd.,
Personal Division,
Mumbai-Pune Road Vehicle,
Akurdi, Pune-411 035.
..Respondents in appeal No.439/2019
COMMON ORDER IN APPEAL NO.439/2019
Mr. KRISHNAMURTHY.B.SANGANNANAVAR : JUDICIAL MEMBER
1. These two appeals are filed u/s 15 of Consumer Protection Act, 1986, one by Ops and another by complainant in CC-72/2017, aggrieved by the order dated 09.01.2019 passed by the District Consumer Disputes Redressal Forum, Raichur. (Hereinafter referred to as District Commission).
2. Brief facts of the case of the complainant that, he has purchased vehicle manufactured by Force Motors Ltd., and taken delivery on 07.02.2017, which was registered in his name vide registration No.KA-36/N-7391. After purchase of the said vehicle, he had expressed malfunctions and engine break down, steering vibration and other defects in the said vehicle at the time of testing in front of OP.No.1 and intends to cancel the said vehicle. However, as OP.No.1 refused to cancel it and informed the complainant that, purchase transaction of Rs.1,00,000/- will be deducted out of the purchase value towards cancellation charges and to avoid that, he has taken delivery of the said vehicle. The vehicle had very low fuel, which has caused automatic shutting down of engine. However, OP.No.2 to 4 misguided him that they are all minor problems and he believed the assurance of OP.No.4 and one Mr.Summit Antarkar but found repeated defects continuously in the said vehicle. The Ops failed to perform pre delivery inspection of the vehicle, but blindly collected a sum of Rs.10,000/- from the complainant towards PDI. The complainant also met the service consultant of OP.No.2 and 3 at Kalburgi and also at Yadgir but both of them unable to fix the vehicle in better condition and further both of them refused to give the job sheet. Finally complainant issued legal notice on 06.09.2017, but OP.No.2 simply replied and spoke about their deficiency of service, manufacturing defect of the said vehicle. He has purchased the said vehicle for Rs.8,00,000/-. The OP.No.1 shall liable to replace the vehicle or pay the vehicle purchase amount and Rs.8,00,000/- and do pay compensation towards sufferings, inconvenience and pay Rs.10,000/- towards costs.
3. Upon raising consumer complaint u/s 12 of the C.P.Act, 1986 on the file of Commission below, after service of notices, as OP.No.1 remained absent is set Ex-parte. The case of complainant came to be dismissed against OP.No.4 as not pressed. However, OP.No.2 and 3 put their appearance through their counsel and they alone resisted the claim of the complainant contending that Force One vehicle assembled with Hi-Tech FM 2.2 Common Rail Diesel Engine with Electronic Diesel Control Unit (ECU) which meets with BSIV emission norms, model of which is approved by an independent testing laboratory and every product before realizing sell is undergoing stringent quality control checks. The complainant has purchased the said vehicle at his own accord without any force, misrepresentation or influence by Ops. Any modifications in the said vehicle are not authorized and permitted. However, complainant has tampered the wiring harness connected between sensors ECU of the said vehicle at unauthorized workshop, which has resulted in the alleged concerns of common rail injector, fuel gauge, fuel sensor etc. From the service record of the said vehicle it is clear that, the complainant has failed to avail scheduled maintenance services from 2nd free service onwards, though it was very well informed to him and also mentioned in the service coupon book that, such services are scheduled for proper maintenance of the vehicle and its aggregates and to ensure its optimum performance. Thus, failure to avail such scheduled maintenance services has resulted in the alleged concerns of the said and the complainant is himself responsible for the same. Further, failure to avail scheduled maintenance service has vitiated warranty policy applicable to the said vehicle. The complainant has purchased the said vehicle from Ops, who is an independent business entity and this OP is not a party to the transaction between the complainant and Ops. Therefore, OP.No.2 and 3 cannot be held liable for the acts of commission or omission on the part of complainant or OP.No.1. Further, contending no manufacturing defect and no deficiency of service on their part. The alleged concerns are result of unauthorized wiring harness tampering and failure to avail scheduled maintenance services by the complainant. The complainant failed to lubricate steering linkages. The vehicle manufactured is high quality vehicle. The extent of warranty is limited to the repairing or replacement of the defective parts, in genuine cases only, as per the applicable warranty policy. The entire vehicle is not required to be replaced. Therefore, question of repayment of purchase price does not arise. The Term No.2 of the terms and condition of warranty policy, in this regard is very clear and even term No.9 provides for; this warranty shall not apply if the vehicle or the part has been subjected to misuse, negligence in use, inadequate maintenance, improper operation, or storage or the service prescribed in the operators service book are not carried out at their authorized dealers workshop at the directed intervals. Further, no responsibility of consequential loss/damages, the company accepts no liability for any loss or damage direct or consequential or for any accident believed to have resulted from failure of any component or part or assessing otherwise. No privity of contract/Nexus in this regard. However, without prejudice, the OP submits prayer of the complainant is totally baseless and untenable and the complainant is not entitled for any reliefs.
4. After completion of the pleadings of the rival parties, the Commission below in appreciation of evidence of complainant, Ex.P1 to P17 and evidence of RW1 for OP.No.2, Ex.R1 to R9, recorded finding that there is deficiency of service on the part of the Ops in resolving the defects found in his vehicle bearing No.KA-36/N-7391, thereby directed Ops No.1 to 3 jointly and severally liable to replace the new vehicle of the same brand by taking back the subject vehicle bearing registration No.KA-36/N-7391 from the complainant or to pay Rs.8,77,000/- to the complainant towards cost of the said vehicle within 02 months from the date of the said order and directed to pay Rs.30,000/- towards compensation and in all to pay Rs.9,07,000/- along with interest @ 8% p.a to the complainant within 02 months. It is this order is not only impugned in these two appeals one by Ops.No.2 and 3 and another by complainant. It is therefore, this Commission heard learned counsels on record for the rival parties to these appeals and gone through the impugned order dated 09.01.2019 passed by District Consumer Disputes Redressal Commission Raichur in CC-No.72/2017 and now Commission to examine whether impugned order passed by Commission below could be maintained in these appeals and to decide whether findings recorded are contrary to facts and law ?
5. We have to make mention at the very outset that the Commission below held liability of Ops.No.1 to 3 is joint and several and they are liable to replace with the new vehicle of the same brand by taking back the subject vehicle bearing registration No.KA-36/N-7391 from the complainant and in the alternative ordered to pay Rs.9,07,000/- along with interest @ 8% p.a. Thus, to record such finding as could be seen from the impugned order that the commission below said to have been examined evidence of complainant, Ex.P1 to P17 documents, evidence of RW1 and Ex.R1 to R9, however failed to examine Section-13(1)(c) of the C.P Act, 1986 itself. Since, the complainant alleges defect in the vehicle purchased by him from Ops.No.1 to 3, which cannot be determined without proper analysis or test of the said vehicle. The Act contemplates certain procedure to be followed before recording any conclusion with regard to defective manufacture of the vehicle purchased by the complainant. In other words commission below should have obtained report of an Expert to that affect, which could not be found from the enquiry held by the Commission below. Admittedly, the vehicle is purchased by complainant on 07.02.2017 and the said vehicle even on 15.11.2017, when consumer complaint was raised before the Commission below was with the complainant and even as on the date of passing of the impugned order it is with him, were not at all examined by the commission below.
6. Further, it would be more appropriate to mention herein the warranty policy in respective of Force One terms and conditions, in particular Term No.1 defines;
“Extent of warranty; The warranty obligation of this OP is limited to the repairing or replacement of the defective parties, in genuine cases only, as per the applicable warranty policy. The entire vehicle is not required to be replaced. Therefore question of repayment of purchase price does not arise.”
Term No.2 of the terms and condition of warranty policy defines as under:
“Our obligation under this warranty will be limited to repairing or replacing, free of charge such parts, which in our opinion are defective, when the vehicle is brought to our dealers workshop within the warranty period and if terms and conditions detailed below are satisfied. Our decision as to whether the part is defective and/or the cause of defect is manufacturing deviation/defect shall be final and binding.”
Failure to avail schedule maintenance services; The Term No.1 of the Terms and condition of warranty defines as under: “On rendering of services, either free or regular services, the servicing dealer is required to forward us the coupon contained in the service coupon book, being delivered along with the vehicle. The customer should ensure that the coupon of the respective services, duly completed is forwarded to us, if it is observed from the records of the company that the services are not availed at the stipulated intervals or stipulated kilometres of running of the vehicle at the authorized service station then the warranty contained herein shall become null and void. We shall not be responsible for any cost or consequences of failure of any part or for any damage or cost suffered by the customer on any account whatsoever”.
Further Term No.20 of the Terms and Conditions of warranty policy defines:
“The company accepts no liability for any loss or damage direct or consequential or for any accident believed to have resulted from failure of any component or part or assessing otherwise.”
7. Thus, upon examination of the above Terms found in Ex.R1 produced by Ops/appellant, Commission below even without obtaining a report from an Expert, as stated above, which is mandatory as per Section 13(1)(c) of the C.P Act, 1986, jumped into conclusion and concluded that, vehicle purchased by complainant on 07.02.2017 is defective, could not be maintainable in this appeal either on facts or law, as such required to be remand back to the Commission below for disposal afresh with a direction to follow the mandatory provision of Section 13(1)(c) of C.P Act, 1986 and examine the warranty terms and conditions of Force One and to as to how the issue to be resolve in accordance with law.
8. In the above such conclusion, question of consideration of Appeal No.639/2019 filed by complainant to consider as to payment of a sum of Rs.10,39,441/- along with 15% interest from the date of filing of the complaint towards the loss sustained by him and to consider other reliefs does not survive for consideration, since we have concluded to remand back the matter to consider afresh, with a direction to the Commission below to examine all the reliefs, besides the reliefs sought by complainant in his complaint along with the defence taken by Ops followed by Section-13(1)(c) of C.P Act, 1986 and the terms and conditions of warranty for Force One in respect of the vehicle purchased by complainant.
9. Accordingly, Appeal No.439/2019 and 693/2019 are hereby disposed with no order as to costs. Consequently, impugned order passed by District Consumer Disputes Redressal Commission, Raichur in CC-No.72/2017 dated 09.01.2019 is hereby set aside with a direction to the Commission below to decide the complaint afresh as observed in this order, affording opportunities to both parties, as early as possible.
10. The parties in these appeals are directed to bear their own costs.
11. Notify this order to the District Commission and both parties.
12. Amount in deposit, if any, is directed to be transferred to the District Commission for needful.
Lady Member Judicial Member
*J*
