Delhi

North East

CC/340/2013

Shri Ankit Kumar Panchal - Complainant(s)

Versus

Ford India Limited - Opp.Party(s)

18 Jun 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 340/13

 

In the matter of:

	Shri Ankit Kumar Panchal S/o Shri Satish Kumar Panchal R/o C-475/2, Street no. 9, Ashok Nagar Delhi-110093	Complainant
	Versus
1.                   2.       3.	Ford India Limited 3rd Floor, Building 10-C DLF Cyber City Phase II Gurugram-122002   Also at:- SP Koil Post Chengalpattu, Kancheepuram Tamil Nadu-603204   Harpreet Ford (Showroom) Dilshad Garden Metro Station Delhi-110095   Harpreet Ford (Workshop) 8/1, Site-4, Industrial Area Sahibabad, Ghaziabad, U.P.	Opposite Parties

 

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

14.11.2013 18.06.2020 18.06.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts germane giving rise to the present complaint are that the complainant had purchased a car Ford Figo 1.4 Titanium white colour, bearing registration no. DL-8C-BN-1000 manufactured by OP1 from OP2 on 17.07.2012 for a sum of Rs. 5.94,200/- vide invoice no. BSLAC00668MN. The said vehicle had two years warranty on it and while it was under warranty, OPs had assured the complainant of free services in case of any defect arising in the said vehicle within the warranty period. On 09.10.2013, the said vehicle did not start and had to be crane lifted to OP3 service center/ workshop where the complainant left the said vehicle for repairs and removal of fault. However, the OPs, without checking the vehicle of the complainant told him that there was adulteration in the diesel mixed with water which was filled in the vehicle. The complainant deposited his vehicle with OP3 on 09.10.2013 but was shocked when he received a call from OP3 on 10.10.2013 informing him that due to adulterated diesel, all four injectors of the vehicle have been damaged and need replacement. The complainant had submitted that OP3 had not checked the diesel of the said vehicle in presence of the complainant and subsequently prepared forged and fabricated report on 09.10.2013 & 11.10.2013 and obtained his signature on both reports illegally and forcibly under threat. Thereafter OP3 imposed a bill of Rs. 70,053/- dated 23.10.2013 on the complainant towards repaired charges despite the said car being under warranty and OPs being legally bound to repair the same and replace the faulty parts free of cost. OP3 even issued legal notice dated 26.10.2013 to the complainant demanding the bill payment and parking charges @ Rs. 350 per day. Complainant submitted that despite repeated requests made by him to OP3 to give delivery of the vehicle free of cost, OP3 has illegally retained the vehicle with itself and has caused inconvenience to the complainant who was looking after the affairs of a school namely Deep Public School, Ashok Nagar, Delhi by using the said vehicle but was deprived of the same causing mental tension and financial suffering. Complainant further stated that the vehicle run only about 15000 kms in one year four months whereas the warranty condition mandated 1,00,000 kms or two years whichever is earlier, but OPs have slapped a bill of Rs. 70,000/- on the complainant. The complainant lastly submitted that he has always got diesel filled in the vehicle from Delhi due to its cheaper rate as compared to other states and the vehicle being fully computerized, it was impossible that water could enter its tank and therefore filed the present complaint praying for issuance of direction against the OPs to handover delivery of the subject vehicle in the same condition without removing any parts thereof, withdraw provisional bill dated 23.10.2013 Rs. 70,053/- and pay compensation of Rs. 2 Lakh for mental pain and financial suffering and Rs. 25,000/- towards litigation charges.
2. Complainant has attached copy of the purchase invoice of the car dated 17.07.2012, copy of RC, copy of insurance certificate, copy of customer information sheet issued by OP dated 11.10.2013 with remarks “car not start-came by crane-fuel mix water- all injectors need replacement than check and report” duly signed by complainant and OP’s service advisor, copy of bill dated 23.10.2013 issued by OP for a sum of Rs. 70,053/- towards repairs complainant’s car and copy of notice dated 26.10.2013 from OP3 to complainant to collect the subject vehicle on payment of Rs. 70,053/- and to pay parking amount of Rs 2,450/- (@ Rs 350 per day w.e.f. 20.10.2013). The complainant filed and interim application praying for direction to OP3 to handover the subject vehicle without replacement of any part to the complainant.
3. Notice was issued to the OPs on 19.12.2013. All OPs entered appearance.
4. Written statement was filed by OP1 (manufacturer) in which it took the preliminary objection of non-maintainability of complainant on grounds of having no privity of contract between complainant and itself. It resisted the complaint on ground that the legal relation between OP1 & OP2 & OP3 was on principal to principal basis and OP2 & OP3 responsible for ancillary services such as warranty and after sale service in capacity of dealer and repair workshops and each party having their own independent marketing strategy and that  it was only in the case of any manufacturing defect that OP was required to meet its obligations as per warranty terms and conditions which does not apply in the present case since the complaint does not pertain to any manufacturing defect and therefore OP1 has been wrongly impleaded. OP1 further disputed any deficiency of service or unfair trade practice on its part. It took the defence that the complainant have used contaminated fuel during the warranty period which straight away negated the warranty policy and it was the omission on the part of complainant to comply with fuel standards by using adulterated fuel which was a main cause of the alleged problem in the subject car and OP1 cannot be held liable any such act or omission on part of complainant in maintenance of the vehicle since the obligation under warranty to replace the damage parts only arises in the event of manufacturing defect and not otherwise whereas the present case falls specifically under cessation  of warranty policy in the even of damage cause due to use of contaminated fuel. OP1 took the defence that the vehicle had covered 15000 within 15 months of its purchase i.e. average run of 1000 kms per month which is not possible in a vehicle suffering from inherent manufacturing defect. OP1 urged that the complainant had failed to establish any manufacturing defect in the subject vehicle by way of leading any expert engineer report or any such credible documentary evidence which is a legal requirement as laid down by Hon'ble Supreme Court and Hon'ble National Commission in catena of judgment that it is necessary to obtain a technical report in cases pertaining to allegations of manufacturing defect in a vehicle. OP1 submitted that there was no deficiency of service on its part in having prepared the vehicle for delivery well in time after carrying out necessary repair therein. On merits, the OP1 resisted the present complaint on grounds that the subject vehicle being driven by complainant with diesel mixed with water and continuous use of contaminated fuel having severely damaged the parts of vehicle, OP2 had informed the complainant that repairs for the said damage shall not be covered under warranty and repairs would be on billable basis for which permission was sought and the same was internally discussed between OP1 & OP2 as well after conducting a detail investigation of the vehicle. OP1 relied upon Warranty Terms and Conditions and specifically laid emphasis on Clause A(12)of WHAT IS NOT COVERED which stipulated that this warranty does not cover “any claim arising from contaminated fuel.” OP1 denied having told the complainant of adulteration in the diesel of vehicle without checking the same and per contra submitted that when the subject vehicle was brought to workshop of OP3 the water in fuel warning lamp was glowing and the same was noted in the job card in which scenario it is mandated to stop the engine switch the ignition of and immediately take the vehicle to the nearest authorize service center to drain out water from the fuel filter as also advised in the Owner’s Manual with word of caution that “failure to do so could damage the vehicle fuel injection system causing engine failure” but the complainant instead of following the said direction / caution, continuously drove the vehicle despite indicator warning and informed OP2 only when the vehicle stop running and the same cannot be a manufacturing defect. Lastly OP1 submitted that as per information received by it from OP2 & OP3, on the subject vehicle coming to the workshop of OP3 and inspection thereof, it was found that its fuel injectors were choked, water in fuel warning lamp was glowing and the sample of fuel taken from the vehicle contained water which contaminated fuel caused failure of injector and complainant was made aware of the same by OP3 which had shown the said sample to the complainant and the same is evident from the Customer Information Sheet dated 11.10.2013 signed by complainant himself and not forged or fabricated as alleged and therefore OP3 had expressed regret to carry out repair free of cost under warranty and requested the complainant for approval to carry out repair job. The OP1 therefore prayed for dismissal of the complaint for no cause of action and no deficiency of service or unfair trade practice on its part.
5. OP1 has filed vehicle repair history report, warranty and service guide and instruments about parts of the vehicle and indications for their respective malfunctioning.
6. Written statement was filed by OP2 & OP3 in which they took the preliminary objection of complainant guilty of his own conduct for which he cannot be allowed to take advantage of as the present complaint is without any cause of action against the answering OPs. OPs resisted the complaint on grounds that the complainant is not a consumer under the ambit of Section 2(1)(d) of consumer Protection Act in view of admission of having used the vehicle commercially for official work of Deep Public School. OPs urged that there was no deficiency of service or negligence on their part since the subject vehicle has been damaged by complainant by using contaminated diesel filled in its tank spoiling the injectors which required replacement and such damages were not covered under warranty as they are not manufacturing defect but damage caused by complainant. OPs denied having suggested free of cost service to the complainant at any stage since the vehicle was rendered out of warranty for use of contaminated fuel, possibility of which was made high in view of complainant frequently travelling to adjoining states and getting diesel filled from many out of Delhi states. OPs submitted that the complainant has himself admitted in his complaint that the car being fully computerized having provision of “Fuel Mix Indicator Light” which immediately starts glowing when contaminated fuel enters the fuel tank, the complainant had seen the said indicator light glowing in the cluster cover when the vehicle was brought to OPs workshop on 09.10.2013 by towing and therefore complainant was fully aware that the contaminated fuel had entered the tank and water being lighter then diesel, it floats above diesel level and easily detachable from naked eye. OPs further objected to the contradiction made by the complainant in his pleadings that on one hand he stated that he was shocked to receive a call from OPs on 10.11.2013 conveying contamination of fuel and on the other hand admitting in his complaint that he was already told about the said contamination at the time of handing over of the vehicle to OPs workshop i.e. on 09.10.2013 and the job card, customer copy of job card and Customer Information Sheet are ample proof of complainant being in prior knowledge and having seen the contaminated fuel himself for which at the time of submission of his vehicle, the complainant admitted his fault and went away calmly. OPs stated that they had informed the complainant through customer Information Sheet which the complainant duly signed that it was token of receipt of information and his consequential liability to pay for its repair since the said sheet showed in clear terms that the fuel in the vehicle was contaminated. Therefore, the complainant did not want to pay the repair charges and is trying to take advantage of his own wrong for getting contaminated diesel filled in the vehicle and all the ensuing damages caused by it to the engine component (injectors) which were rendered out of warranty. The OPs submitted that the vehicle is lying parked in its workshop and is unnecessarily occupying parking space and therefore levy of Rs. 350 per day is justified to deter customer like complainant to use the place as free parking. OPs urged that it was only after the complainant was shown the condition of contaminated fuel and taking his prior approval that the repair and flushing work was started and the bill for the repair was raise justifiable as repairs work out of warranty and the said bill in not exorbitant. OPs alleged that the subject vehicle is lying in its workshop since 09.10.2013 due to complainant failure to collect the same after clearing the bill amount which has been raised as per the labour schedule and cost of genuine part. OPs contended that they had drawn out a detail repair Order at the time of receiving of vehicle where depiction of dent, scratches and other damages are recorded in documented form and signature of complainant was taken on the same with copy given and therefore complainant cannot falsely denied the same to get the job done free of cost. Lastly, OPs stated that as per rightful submission /admission of complainant that “fuel mix indicator light” had started glowing in the fully computerized car, the same is corroborated by the said endorsement clearly mentioned in repair order no. 07297SB dated 09.10.2013 issued by OP3  which mentioned “car not start come by towing & fuel mix light glowing.”OP2 & OP3 therefore prayer for dismissal of the complaint on grounds of being frivolous and vexatious with no cause of action.
7. OP2 & OP3 have filed copy of repair order dated 09.10.2013, copy of customer information sheet dated 11.10.2013 and copy of letter dated 26.10.2013 from OP3 to complainant to collect the vehicle on payment of repair bill and also the parking charges.
8. On interim application moved by complainant for delivery of the vehicle, Forum vide order dated 07.02.2014 directed OP2 & OP3 to release the subject vehicle duly repair immediately to the complainant with dispute regarding repair amount to be adjudicated later OPs preferred revision application no. FA/147 of 2014 before Hon’ble SCDRC however the same was dismissed by Hon’ble SCDRC by order dated 12.03.2014. The complainant moved an execution application on 24.02.2014 against the OPs for non-compliance of aformentioned order and OPs sought time to take instruction for settlement, if any.  On hearing held on 14.03.2014, vehicle was brought to the Forum premises by driver of OP2 & OP3 and the complainant on inspecting the same notice some dent on the body of the car, which he claimed were earlier not present and alleged to have been caused at the workshop of OP3. Nonetheless, the complainant paid 50% of the bill amount i.e. Rs. 35,000/- to OP3 without prejudice and balance amount subject to final decisions of this Forum which he shall be bound by unconditionally. The subject vehicle was also delivered to the complainant and the interim application was thus decided / disposed off. However, on the application of complainant for seeking report of expert since the engine of the vehicle was “showing back compressor”, both party made joint endorsement for getting the vehicle examined / inspected and therefore the vehicle was returned to the GM of OP2 & OP3 with direction issued to the concerned institute for conducting inspection of the vehicle on fees to be shared equally between complainant to OPs.Ho        However, the said institute turned out to be an educational one and therefore inspection could not be conducted vide remarks dated 27.03.2014 issued by the said institute. Thereafter the subject vehicle was brought again before this forum on 15.05.2014 and possession of the same was taken by the complainant though he raised and objection regarding dents on the vehicle to which the OPs vide written comments on the order sheet of the forum submitted that the dent was already there at the time of receiving car as per job sheet card 09.10.2013 and the same was even counter signed by the complainant and the said job card has been already placed on record before this Forum. OPs further submitted that the complainant had taken the possession of the said vehicle after checking its compressor engine which was found OK.
9. Rejoinders to the written statements of OP1, OP2 & OP3 were filed by the complainant in rebuttal to the defence taken by OPs therein vide which the complainant denied having ever admitted the vehicle being used commercially for official work of school. He further denied any indication or glow of the meter light for indication of contaminated fuel and submitted that without taking out diesel from the tank one cannot determine its contamination with water and submitted that he had signed on the job card customer information sheet etc., without reading the documents as was given no time by OPs to read the contend and reiterated that the diesel sample was not taken out from the diesel tank by OP3 in his presence. The complainant submitted that the vehicle was well under warranty and that the complainant never got adulterated fuel filled in his vehicle.
10. Evidence by of affidavit was filed by the complainant exhibiting the documents relied upon ExCw 1/1 to Ex Cw/1/5.
11. Evidence by way of affidavit was filed by OP1 reiterating the defence taken in the written statement and exhibited the documents relied upon therein as Ex OP1/A to Ex OP1/D. OP2 & OP3 did not file its evidence.
12. Written arguments were filed all parties in reassertion / reiteration of their respective grievance/ defence. Copy of Dealer Sales & Service Agreement between OP1 & OP2 & OP3 dated 26.05.2009 was filed by OP1. Emphasizing upon Clause 12(a) thereof which stipulated that the said agreement did not in anyway create a principal agent relationship between the OPs and therefore the dealer cannot be considered as agent of the company or assume or create any obligation on behalf of or in the name of the company. During the course of oral arguments OP1 filed judgment of Hon’ble NCDRC relied upon by it pertaining to it limitation of warranty and conditions where the same is rendered null and void in cases of unauthorized modification / fitment.
13. We have heard the arguments addressed by counsel for complainant and have bestowed our anxious consideration to the documentary evidence placed on record by all sides. OPs did not appear despite several calls made by the office of this Forum. However, their respective pleadings shall be taken into consideration alongwith judgments relied upon by OP1 passed by Hon’ble National Commission in Hindustan Motor Ltd, vs. Smt. P. Vasudeva and M/s Piaggio Greaves Vehicle Pvt. Ltd. Vs Ramakanta Samal pertaining to unauthorized fitment of AC in the car rendering the warranty void and no expert opinion or vehicle subjected to examination therefore warranting no relief.
14. The key issues which falls for consideration is whether the complainant is entitled to the refund of the amount of Rs. 35,000/- paid by him to OP3 as 50% of bill amount of Rs. 70,000/- or OP3 is entitled to the remaining outstanding payment of Rs. 35,000/- from complainant depending upon which parties have been able to establish and prove his / its case on merits. From keen scrutiny of the documents placed on record before us, it can be seen that the job card dated 09.10.2013 prepared by OP3 at the time the subject vehicle was brought by complainant for no start at 15503 kms bears endorsement of “fuel mix light glowing” against the column of customer request with diagnosis / work instruction fuel filter change, fuel tank open and clean and all injectors to be changed said job card is followed by the customer information sheet dated 11.10.2013 duly signed by complainant with repeat observations ‘fuel mix water and all injectors need replacement’. Therefore the contention of the complainant that the diesel sample was not checked in his presence stands falsified in view of the job card prepared on 09.10.2013 when the complainant had got the subject vehicle towed to the service station of OP3 and also by the fact that the customer information sheet dated 11.10.2013 bears his signature. The complainant is an educated person and it is not believable that either the signature taken by forcibly or illegally he signed the documents without having been given time by OP3 to read the documents as has been made out by the complainant. Admittedly complainant has not pleaded any manufacturing defect in the vehicle and evidently so it had been run 15000 kms in 15 months i.e. rightly pointed out by OPs on an average of 1000 kms per month. The only grievance of the complainant is that for repairs of his car, bill of Rs. 70,000/- was raised on him by OP3 despite the vehicle being still under warranty. OP1 has drawn our attention to the instruments as per warranty booklet filed as Annexure C with the written statement for parts of the vehicle and their respective warning, relevant for the present case being water in fuel warning lamp (vehicle with diesel engine) with instructions to immediately bring the vehicle to authorized Ford dealer to have the water drain out from fuel filter but the complainant. He continued driving with water accumulate in fuel filter is bound to damage the fuel injection pump. As per the invoice dated 23.10.2012, for all four injectors were changed for a sum of Rs. 55,000/- (approx) which constitutes almost 80% of the total bill amount since the injector failed due to water entry therein. It appears that during the regular course of running of the subject vehicle, water accumulated in the fuel filter which infuse damaged the fuel injection pump. The onus was on the complainant to prove that blinking of the diesel light and non start of vehicle was on account of manufacturing defect but no such proof was placed on record by him nor has that been line of arguments adopted by complainant. In absence of such proof, complainant was not entitled to get the repairs done free of cost merely on the basis of averment that the vehicle was within warranty period because use of adulterated fuel rendered the warranty void. The Hon'ble National Commission in Skoda Auto India Pvt Ltd and Ors vs Bhawesh Narula in RP No. 1717/2014 observed that when fuel injector was required to be replaced on account of adulterated fuel, there was no question of manufacturing defect in the vehicle. The Hon'ble National Commission in Toyota Kirloskar Motor Pvt. Ltd & Anr Vs Mr. T. A. Ameer I (2016) CPJ 16 (NC) held in a similar case of adulterated fuel mixed with water in a diesel engine vehicle which spoiled its injectors and had to be replaced against payment of Rs. 79,574/- that both the foras below i.e. District Forum and State Commission Karnataka committed error in allowing the complaint and dismissing the appeal respectively and allowed the revision petition. After due appreciation of the facts of the case and documentary evidence placed on record before us. The subject vehicle coming to the workshop of OP3 and inspection thereof, it can be seen that when the subject vehicle was brought to OP3 service station on 09.10.2013, the fuel injectors of the subject vehicle were found choked, water in fuel warning lamp was glowing and the sample of fuel taken from the vehicle contained water which contaminated fuel caused failure of injector and complainant was made aware of the same by OP3 which had shown the said sample to the complainant and the same is evident from the Customer Information Sheet dated 11.10.2013 signed by complainant himself as admitted by him during the course of oral arguments and therefore not forged or fabricated as alleged and therefore in our view  OP3 had rightfully expressed regret to carry out repair free of cost under warranty since the fact of adulterated fuel gone into the vehicle rendered its warranty void and therefore OP3 rightfully requested the complainant for approval to carry out repair job on payment basis. Moreover, complainant has himself admitted in his complaint that the car being fully computerized having provision of “Fuel Mix Indicator Light” which immediately starts glowing when contaminated fuel enters the fuel tank, the complainant had seen the said indicator light glowing in the cluster cover when the vehicle was brought to OPs workshop on 09.10.2013 by towing and therefore complainant was fully aware that the contaminated fuel had entered the tank and water being lighter then diesel, its floats above diesel level and easily detachable from naked eye. We also have observed a contradiction made by the complainant in his pleadings that on one hand he stated that he was shocked to receive a call from OPs on 10.11.213 conveying contamination of fuel and on the other hand admitting in his complaint that he was already told about the said contamination at the time of handing over of the vehicle to OPs workshop i.e. on 09.10.2013 and the job card, customer copy of job card and Customer Information Sheet are ample proof of complainant being in prior knowledge and having seen the contaminated fuel himself for which at the time of submission of his vehicle, the complainant admitted his fault and went away calmly which explains that complainant through customer Information Sheet duly signed by him that it was token of receipt of information and his consequential liability to pay for its repair since the said sheet showed in clear terms that the fuel in the vehicle was contaminated. After due appreciation of all aspects, we conclude that there is no merit in the complaint and therefore dismiss the same with directions to the complainant to pay the remaining Rs. 35,000/- to OP3 towards repair charges within 30 days of receipt of copy of this order in view of the fact that the complainant has already paid 50% of invoice amount of Rs. 70,000/- raised vide invoice dated 20.10.2013 to OP3 in hearing held on 15.05.2014 on which date he was handed over the possession of the subject vehicle by OP3.
15.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
16.   File be consigned to record room.
17.   Announced on 18.06.2020.

 

(N.K. Sharma) President

(Sonica Mehrotra)  Member