Order-14.
Date-18/09/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case, in short, is that complainant is a Director of the company Aadarsh Tradlink Pvt. Ltd. The Members of Directors of the said company made a resolution of arrangement of car for the complainant as the complainant is a responsible person and has to visit distant places and accordingly, a private car was arranged for the complainant for his personal use through the help of OP4 being financier. OP1 is the manufacturer. OP 2 is the selling dealer. OP3 is the service centre of OP1 and OP4 is the financier of the complainant. The vehicle was purchased on 22-05-2014 from OP1 bearing registration no.WB 20AG1234 having model Ford Eco Sport Petrol with a price of Rs.8,79,707/- which the OP1 duly received and accepted. The complainant took finance of Rs.7,91,500/- having 60 instalments and has been paying the instalments regularly. It is alleged that since after purchasing the said vehicle, problem repeatedly started from the Engine side and the complainant had to bring the car to the service centre of the company but till date the problem of the vehicle has not yet been solved and the complainant had to pay near about Rs.3 lakhs to the service centre of the company for repairing and service charges in spite of remaining warranty period. The complainant being dissatisfied with the repair of the service centre and also being harassed took the vehicle to Kaikan Fort Service Centre on 17-08-2016 and took the vehicle back on 30-08-2016 but the problem with the engine remained same and accordingly, the vehicle from time to time was taken to the service centre from the very beginning of the purchase but nothing has been done effectively on the part of the OPs. The car became useless and is lying without running. The complainant repeatedly requested the OPs to replace the vehicle by new car or refund the value of the vehicle but OPs 1 and 2 have been avoiding the request of the complainant and have been enjoying the money received from the complainant. It is alleged that the vehicle is defective. The complainant has been paying EMI to OP3 with a fear of default. It is alleged that OPs 1 and 2 have not been providing effective service to the interest of the buyer. The complainant has prayed for refund of the price of the vehicle or replacement of the vehicle along with other reliefs in terms of the prayers in the petition of complaint.
OP1 has contested the case in filing written version contending, inter alia, that the complaint is not maintainable in law and the same is liable to be dismissed. It is stated that the vehicle manufactured by the answering OP enjoys an excellent reputation in the automobile market in India and its Ford Eco Sport car has received maximum award for critics and purchasers and from viewers of various TV Channels. It is stated that complaint does not disclose any manufacturing defect as envisaged u/s.2(1)(f) or any deficiency in service as defined in Section 2(1)(g) of the Act against the answering OP. It is stated that there is no defect in the vehicle and there had been no deficiency in services rendered by the answering OP and, as such, no liability can be fixed upon the contesting OP towards repair/replacement of the subject parts of the vehicle. It is stated that the alleged issue of noise and white smoke mentioned in the complaint were not due to any manufacturing defect. It is stated that the vehicle in question has already clocked 40721 Kms which is definitely indication of the fact that there is no manufacturing defect as no vehicle having an inherent manufacturing defect can cover so much distance. It is stated that the complainant reported to the workshop of the authorized dealer of 17-08-2016 with white smoke and engine noise and same was checked and inspected by the technician person at the workshop. It was found that the turbo charger required replacement and accordingly the turbo-charger was replaced under warranty by the authorized dealer free of cost as the vehicle was within the warranty period. It is stated that the relation between the OPs 1 and 2 is purely on principal to principal basis. OP2 being authorized dealer mainly looks into the providing after ancillary and sales service to its customers. It is stated that there is no manufacturing defect in the car and no cause of action accrued in favour of the complainant as against the answering OP. it is denied that the complainant had to pay Rs.3 lakh to the service centre for repairing in spite of vehicle being under the warranty period. It is submitted that whenever the complaint of the vehicle of the complainant had reported to the workshop or authorized dealer, a thorough examination of the vehicle was done and ever suspected problem of the complainant was attended and repaired under warranty to the full satisfaction of the complainant. This OP submits that the complainant is not entitled to any of the relevant claims in the petition of complaint.
OPs 2 and 3 have also contested the case in filing written version contending, inter alia, that the case is misconceived, speculative, harassing and not maintainable in law. It is stated that complainant has suppressed material fact and documents and the complaint case does not disclose any cause of action against these OPs. It is stated that the complaint is not a consumer as per Section2(1)(d)(i) and hence, the present complaint is not maintainable. It is denied that Private Ltd. Company purchasing the car for one Director can qualify for the relief under the C.P. Act. It is denied that after purchasing of the said vehicle, problem started and the complainant had to pay Rs.3 lakhs to the service centre in respect of cover under the warranty period. It is stated that the charges paid by the complainant was not under the terms of warranty and all costs of car service do not come under the ambit of warranty. It is stated that the car was extensively used. It is stated that having using the vehicle almost three years the complainant came with a request for replacement of the car. It is denied that the car became useless and lying without running. This OP has prayed for dismissal of the case.
Point for Decision
- Whether OPs are deficient in rendering services to the complainant?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We take both the points for the sake of convenience and discussion.
We now take a glance towards documents on record as filed from the side of the complainant – Xerox copy of Board Resolution dated 25-05-2014, Xerox copy of smart card of the vehicle, Xerox copy of retail invoice, Xerox copy of contract service, Xerox copy of bank statement, Xerox copy of repair order, Xerox copies of money receipts on different dates, Xerox copy of tax invoice of Kailan Ford, Xerox copies of bills, Xerox copy of repair order, Xerox copy of checklist, Xerox copy of vehicle report card and other documents on record. OP1 has also filed some documents i.e. Xerox copy of customer information regarding repair order and repair order dated 17-08-2016, Xerox copy of customer satisfaction note, Xerox copy of tax invoice, Xerox copy of repair order, Xerox copy of dealership agreement and other documents on record.
It appears that the OP1 is the manufacturer, OP2 is the selling dealer, OP3 is the service centre of OP1 and OP4 is the financier of the complainant. We find that the complainant purchased the subject vehicle on 22-05-2014 from OP1 and he purchased the car taking finance from OP4 of an amount of Rs.7,91,500/-. Complainant has alleged problem with the Engine and that he took the car to service centre of the Company time and again and also had to foot bill nearby of Rs.3 lakhs to the service centre and for repairing and service charge in spite of not expiry of warranty period and within the period of warranty. The complainant has also alleged manufacturing defect and has prayed for replacement of the vehicle or refund of the price of the vehicle along with compensation, repairing charges, litigation cost etc.
We find that the complainant has not been able to produce any evidence including report and or of an expert to indicate that there is manufacturing defect with the vehicle. We, however, find that there was problem of noise and white smoke with the subject vehicle but in absence of any expert opinion. We cannot go to any definite conclusion that it was due to manufacturing defect. Moreover, we find that the vehicle in question has already clocked 40721 Kms. Which is itself indicative of the fact that there is apparently no manufacturing defect as no vehicle having inherent manufacturing defect can cover so many distances. We find that after running the vehicle over thousands of kms., complainant has alleged manufacturing defect in the vehicle. From the documents on record we find that the vehicle was purchased on 22-05-2014 and the vehicle had reported to the workshop of the authorized dealer on 17-08-2016 with concerns of white smoke and engine noise, the same was duly checked and inspected by the technicians at the workshop. It was found that Turbo Changer required replacement and accordingly, the turbo changer was replaced under warranty by the authorized dealer free of any charge as the vehicle was within the warranty period. The said fact is reflected in the vehicle repair history as provided by OP2. It also appears that the complainant after completion of the aforesaid repairs took the trial of the vehicle and thereafter, signed the satisfaction note and acknowledged that the problem in the vehicle was resulted to his full satisfaction. We know that the complainant purchased the vehicle from OP2 who is one of the authorized dealers. Authorized dealer mainly looks into providing after ancillary and after sale-services to the customers. It is the only in case of any manufacturing defect that OP1 is required to meet its obligation as per standard prescribed. We know that the relationship between the manufacturer and the authorized dealer is on principal to principal basis and all the after sale services are to be rendered by the authorized dealer.
It, however, appears from different repair orders that the complainant had to foot bills of repair even within the warranty period and it is not. of course, desirable. Complainant has alleged that complainant had to pay Rs.3 lakhs to the service centre in respect of remaining the warranty period. It is not desirable that a consumer will pay the charges of repair when the vehicle is under the tenure of warranty. So, we think that repair under the ambit and within the period of warranty should be free of costs. We think that OPs 1 and 2 are liable to foot the bills of the subject vehicle under the warranty period.
It has been argued from the side of the OPs that the company purchased the car for the use of the complainant and it amounts to purchase for the commercial purpose as a perk of office. So, the vehicle was not for personal use but for commercial purpose. We find that the complainant is a director of a company and the company by board resolution handed over the subject car in favour of the complainant for personal purpose and not for company and no such profit or interest is accepted for this vehicle. The Hon’ble National Commission has held that when the cars are purchased for the use of the Directors and are not to be used for any activity directly connected with commercial purpose of earning profit, cars are not used for hire but for personal use of the Directors. Hence, it cannot be said that the complainant company has purchased the car for commercial purpose [IV (2007) CPJ 1(NC) relied upon]. We, therefore, reject the plea of the OPs in the present case that the purchaser is not a consumer. We find that the complainant is a beneficiary in the instant case. We accordingly hold that the purchase of the car in question by the complainant is not a case of purchase for commercial purpose.
We find that the subject car was attended by OPs 2 and 3 on 17-08-2016 with concerns of white smoke and in engine noise and turbo-charger replaced under warranty but apart from that complainant had also to spend substantial amount for the purpose of repair even within the warranty period and which is not at all desirable. In the present circumstances, the complainant is entitled to the amount of repairing bills from OPs 2 and 3 for the period before expiry or till expiry of warranty period, and the repairs which are within the ambit of warranty.
Consequently, the case merits success.
Hence,
Ordered
That the instant case be and the same is allowed on contest against OPs 2 and 3 and dismissed against OP1 and OP4.
OPs 2 and 3 are directed to meet up all the bills of repairs which are with the ambit of warranty in respect of the subject vehicle borne by the complainant before or since purchase till the expiry of warranty within one month from the date of this order.
Complainant is also entitled to litigation cost of Rs.10,000/- against OPs 2 and 3.
We make no order as against OP1 and OP4.
Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision in C.P. Act.
