STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Appeal No.163 of 2010)

                                                                   Date of Institution: 12.04.2010

                                                                   Date of Decision  : 27.01.2011

Sh. Pawan Kumar Kukreja son of Lt. Sh. A. D. Kukreja, Aged about 45 years, resident of House No.215, Advocate’s Society, Sector 49-A, Chandigarh.

……Appellant/Complainant.

V e r s u s

(1)       Ford India Pvt. Ltd., through its Managing Director, S.P. Koil Post Chengalpattu, Tamil Nadu, India – 603204.

(2)       Saluja Motors Pvt. Ltd., Show Room No. 53, Industrial Area, Phase-I, Chandigarh.

(3)       New India Assurance Company Limited, through its Branch Manager/ Incharge, SCO No. 58, Sector 26-C, Chandigarh.

              ....Respondents/OPs.

BEFORE:            MRS. NEENA SANDHU, PRESIDING MEMBER.

                        S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:            Sh. P. K. Kukreja (Advocate), appellant in person.

                        Sh.Anupam Bansal, Advocate for respondent No.1.

                        Sh. Vikas Jain, Advocate for respondent No.2.

                        Ms. Manpreet Kaur, Advocate, proxy for

                        Sh. Rajneesh Malhotra, Advocate for respondent No.3.

PER JAGROOP SINGH MAHAL, MEMBER.

1.                 This appeal under Section 15 of Consumer Protection Act, 1986 (hereinafter referred to as the Act) has been filed by the complainant against the order dated 10.2.2010 passed by learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter referred to as District Forum) vide which the complaint filed by the appellant was dismissed.

2.                 Briefly stated the case of the complainant is that he purchased a Ford Fiesta ZXI  (TDCI) car color Platinum from the OP No. 2 and paid a total of Rs.7,46,600/-, out of which a sum of Rs.7,36,000/- was towards the cost of the vehicle and Rs.10,600/- was on account of extended warranty for a period of two years after expiry of one year. It was alleged that the vehicle was got insured by OP No.2 through OP No.3 who issued cover note dated 16.02.2007. As per the complainant, from the very beginning of its purchase, he started facing various problems in the vehicle. As per the complainant, he had taken the vehicle due to these problems to the authorized service stations on 17.03.2007, 30.03.2007, 13.05.2007, 01.07.2007, 18.08.07, 28.12.07, 09.02.2008, 31.05.2008 and 13.08.2008 etc.  It was alleged by the complainant that he paid a sum of Rs.2448/- on 18.08.2007 and Rs.2549/- on 28.12.2007 towards the repair of the vehicle. Unfortunately, on 13.08.2008, when he was coming back to Chandigarh from Panchkula between 5.30 am to 6.00 am, suddenly near red light situated near Kalagram, the left wheel of the car broke down from the shaft of front axle and the vehicle became unbalanced and rammed into road side tree. The vehicle was damaged and was not in a position to be moved as the front side of the vehicle, left door, left fender, right fender, front bumper etc. of the vehicle were badly damaged. The case of the complainant is that the said accident had not taken place due to any negligence of his but due to breakage of shaft of front axle, which was suffering from a manufacturing defects.  It was averred that the representative of the OP No.2 assured to do the needful without any charges and the signatures of the complainant were obtained on blank printed papers and intimation of the said loss was also give to OP No. 3 the next day on 14.08.2008. It was further averred that OP No.2 demanded from him an amount of Rs. 30,000/- for the purchase of spare parts, which was paid but nothing was done. As per the complainant, it was only on 15.09.2008, when OP No. 2 started the denting job. The complainant next averred that 25.09.2008 the OP No. 2 delivered the car to the complainant on making the further payment of Rs.6500/- vide receipt no. 3847. OP No.2 delivered the vehicle to the complainant after receiving the amount of Rs. 36,500/- against the bill of Rs.1,38,710/-. As per the complainant, after necessary repairs, the vehicle is stilling suffering from the problems of low average, defective Balance fuel indication meter, defective wheel alignment, paint mismatch, central locking not working, gap between fenders and body of the car, wheel plate not replaced, defective tyre, high noise level of the vehicle. As per the complainant, OP No. 2 had wrongly obtained a sum of Rs.36,500/- from him and had not even brought  the vehicle to its required condition. Alleging that OPs No.1 and 2 had wrongly charged the amount of Rs.36,500/- despite the vehicle being under warranty and the said accident had taken place due to manufacturing defect in the vehicle, the complainant filed the complaint

3.                 OP No.1 in its written statement denied the averment of publishing any advertisement declaring mileage of its vehicle to be 33 Km per liter. As per OP No.1, the vehicle was brought for service on 17.03.2007, 18.8.2007, 28.12.2007, 9.2.2007 and 31.5.2007 and the same was carried out to the satisfaction of the Complainant. As per OP No.1, the vehicle was brought to it for accidental repairs by the complainant on 18.8.2008 and on diagnosis, it was found that it had suffered damage due to an accident leading to consequential damage to PAN Assembly and Shaft Front Axle and many significant parts like Guard Front Splash, Spindle Rod Con (LH), Shock absorber (front LH), Shaft Front Axle, Arm Assembly Front Suspension, Hose Assembly Brake etc. were broken and damaged in the vehicle due to the accident. It was pleaded that all the alleged concerns were minor in nature and were rectified. It was denied that the Shaft front axle of the vehicle was suffering from any manufacturing defect, which resulted in the accident of the vehicle on that account. As per OP No.1, the Complainant had abused the vehicle beyond comprehension and had violated the terms and conditions of the warranty and thereby invalidated the same. Due to the aforesaid reasons, the OPs had refused to repair the vehicle under warranty. As regards the delay, it was pleaded that the same was on the part of the Complainant himself as he did not turn up for taking the delivery of the car, which was ultimately taken delivery of on 23.9.2008. Pleading no deficiency in service on its part, OP No.1 prayed for dismissal of the complaint with exemplary costs.

4.                 The contention of OP No.2 is that the car had met with an accident and suffered considerable loss. It was alleged that the story propounded by the complainant is false and photographs of the vehicle show that the wheel rim of the vehicle is bent doubled because of under chassis impact, the front door of the vehicle was also folded in a peculiar manner which could only be caused because of under chassis impact. It was contended that the suspension of the vehicle was also bent which establishes that the vehicle had been hit by a strong object, which caused the wheel rim to bend further causing repelling effect in floating the door and bending the suspension. On merits, it was contended that the complainant visited them with four problems on 13.05.2007 and a job card was prepared addressing the problems. As per this OP, the complainant had given satisfaction reports on every date of his visit and there had been no complaint of that particular problem again. It was next pleaded that the Complainant was not taking any interest in the repair of the car and a letter reminding him of the damaged car was also written subsequent to which he sent money for the repairs. It was only after many reminders that he came to take the delivery on 23.9.2008. It was further asserted that there was delay on the part of the complainant in payment of the money and the verification of his registration certificate and driving license. It was further pleaded that according to the gate pass issued on 23.9.2008, the Complainant had written that the fender work was pending, which clearly established that there was no manufacturing defect in the vehicle and thus, the intention of the Complainant from the very beginning was to blackmail OP No.2. Pleading no deficiency in service on its part, this OP also prayed for dismissal of the complaint with exemplary costs.

5.                 OP No. 3 in its written statement, admitted that vehicle in question was insured with its for the period from 16.2.2008 to 15.2.2009. It was pleaded that the complainant gave the intimation of loss on account of accident on 14.8.2008 vide letter Annexure R-3/1, upon which, a Surveyor was deputed who assessed the loss to the tune of Rs.1,38,710/- and the claim was passed by the Surveyor to the tune of Rs.1,02,000/-, subject to the terms and conditions of the policy. As per the Insurance Company, the said amount of Rs.1,02,000/- was to be paid to the Complainant on production of receipt that the payment had already been made by him to the repairer or that the payment was to be made to the repairer after the signing of satisfaction voucher by the insured/Complainant. It was pleaded that no satisfaction voucher was signed by the insured/complainant and hence, the payment could not be released to repairer. Pleading no deficiency in service on its part, this OP also prayed for dismissal of the complaint with exemplary costs.

6.                 The parties were given opportunity to lead evidence in support of their contentions.

7.                 After hearing the learned counsel for the parties and perusing the record, the learned District Forum dismissed the complaint vide the impugned order dated 10.2.2010 as already mentioned in the opening para of the judgment.

8.                 The complainant has challenged the impugned order through this appeal.

9.                 We have heard the arguments of the appellant Sh. P. K. Kukreja (Advocate) in person and respective counsel for the respondents/OPs and have also perused the record as well as the written arguments filed by both the sides.

10.               The appellant who is an advocate has contended that there was manufacturing defect in the vehicle due to which the front shaft broke down when he was going from Panchkula to Chandigarh, the vehicle went out of control and struck with a tree causing damage to the vehicle and some injuries to the appellant. Though he alleged in Para No.8 of the complaint that his signatures were obtained on blank printed papers and intimation of the said loss was given to OP No.3 (Insurance Company) on 14.8.2008 yet a perusal of Annexure R-5 shows that the particulars therein were filled in by the complainant/appellant himself. The reason given in the Claim Form (Annexure R-6) is the same as mentioned above that he was coming from Panchkula to Chandigarh, suddenly the front wheel was broken from shaft, vehicle went beyond control and hit nearby tree. The complainant has given his own affidavit in support of his contention. This story, however, was not accepted by the learned District Forum. We also are not inclined to accept the same. The OP No.2 has submitted its reply and attached photographs of the vehicle before it was repaired. The first and third photographs show that the rim was bent and the front shaft was broken. The rim, which is of iron, is bent in such a manner, which shows that it could be only if there was heavy impact thereon. The contention of the complainant that it was minor accident when the vehicle hit the tree and he sustained only minor injuries cannot be reconciled with the impact on the rim due to which the rim was folded. The contention given in preliminary objection No.2 therefore appears to be correct in which it was mentioned that from the photographs of the vehicle, it is very clear that the wheel rim of the vehicle is doubled because of under chassis impact. It was further mentioned that the front door of the vehicle was also folded in a peculiar manner, which could only be caused because of under chassis impact. According to them, these facts establish that the vehicle has been hit by strong object, which caused the wheel rim to bend further causing repelling effect, which resulted in the folding of the door and further bending of the suspension.  These facts, therefore, falsify the contention of the complainant that the axle shaft was broken and thereafter, the vehicle having gone out of control struck against a tree. In that eventuality, the bumper would have been smashed into pieces because the impact on the wheel rim and the door shows that if it could fold the same, the question of the bumper remaining one piece was impossible. It appears the wheel rim and the door had bent due to heavy impact and not on account of the breakage of the shaft. We are, therefore, of the opinion that it was the accident, which occurred first and thereafter the shaft was broken. The contention of the complainant that the shaft was broken first and thereafter the vehicle went out of control and hit the tree cannot be accepted as correct.

11.               The complainant has then argued that the report of Sh. G. S. Riar, Surveyor shows that the Shaft Front Axle was the cause of the accident and therefore, nothing was paid for replacing there of. The appellant argued that neither it was considered as a manufacturing defect nor any compensation for the replacement of the shaft was given to him and therefore, the impugned order is bad in law. It is true that at Serial No.33 under the head “ASSESSMENT”, Sh. G. S. Riar has mentioned in his report dated 1.1.2008 that the Shaft Front Axle was the cause of accident. We, however, have been told that it is mentioned so because the complainant himself has mentioned in his Claim Form (Annexure R-6) that the front wheel was broken from shaft before the accident took place due to which the breakage of the shaft was not considered due to accident and therefore, no payment could be made there for. OP No.3, however, should not have adopted this approach because they could have got the claim investigated/ verified from their investigator and should have come to the correct conclusion whether the shaft was broken first or it was the accident first due to the impact of which the shaft was broken. Since,  the front wheel shaft was broken in the accident, as mentioned above, it was necessary for OP No.3 to pay compensation thereof.

12.               The appellant has then referred to the various defects as pointed out by him in Para No.6 of the complaint and the affidavit and contended that these were not removed, which show the manufacturing defect in the vehicle. As against it, OP No.2 has alleged that as and when a defect was pointed out by the appellant, the same was attended to without any delay and the defects were promptly removed to his satisfaction. It is argued that that is why he had been driving the vehicle for 29,000 KMs before the accident took place resulting in the damage to the wheel rim and the shaft. The defects pointed out in Para No.6 of the complaint are minor and these could occur due to day to day use of the vehicle. It is also mentioned against these entries that the vehicle parts were changed by OP No.2 wherever needed and the problem was attended to. These defects, therefore, do not prove if there was manufacturing defect in the vehicle. In fact, these have occurred now due to accident and therefore, cannot be attributed to a manufacturing defect. The appellant has referred to the affidavit of Sh. Satinder Singh, who according to him, is an expert and had examined the vehicle and deposed that there were manufacturing defects in the vehicle. On the other hand, the learned counsel for the OPs argued that he is a fake person and was never running his business at S.C.O No.441, Motor Market, Manimajra. They have produced a photograph of the said S.C.O No.144, which shows that R.A. Agencies are working in the said premises and not M/s Vishkarma Autos of which Sh. Satinder Singh claims to be the Proprietor. Sh. Satinder Singh claimed to have been working with M/s Premier Motor Garage, Industrial Area, Phase I, Chandigarh in the technical side. OPs, however, produced a letter dated 26.8.2009 from M/s Premier Motor Garage, 47, Industrial Area, Phase I, Chandigarh who reported that no such mechanic worked with them in the past. When the very experience of the expert is negatived from the documentary evidence, we cannot assign much value to the report submitted by him. Otherwise also, as discussed above, the minor defects as alleged by the complainant in Para No.6 of the complaint cannot be blown disproportionately into manufacturing defects.

13.               It is also argued by the appellant that the vehicle was taken to the premises of OP No.2 on 13.8.2008 but nothing was done by the OPs till 10.9.2008 and no repair work was started and the denting job was started by OP No.2 only on 15.9.2008 and the vehicle was delivered to the complainant on 25.9.2008. It is argued that this delay was caused due to the reason that OP No.2 was not having the spare parts in the store, which by itself is deficiency in service. As against it, the learned counsel for the OPs has argued that the repair involved more than Rs.1,30,000/- and the complainant was being requested to deposit some amount with OP No.2 so that the repair was started. The complainant, however, did not deposit any amount with them. It was alleged by OP No.2 in Para No.8 of the reply that the complainant was not taking any interest in the repair of the car and the OP reminded him after which he sent money for the repair. Annexure R-7 is the letter dated 29.8.2008 vide which the complainant was requested to give advance money so that they could start repairing job on the vehicle but he had not paid any till then. He was again reminded through his latter to send the advance money. It was thereafter on 4.9.2008 that a sum of Rs.30,000/- was paid by the complainant vide Annexure R-8. It is contended that immediately thereafter the repairs started and when the car was fully repaired, he was again asked to take the delivery but he was not willing to take the same. It is contended that after several reminders, he came on 23.9.2008 to take delivery of the car and therefore, there was no deficiency on their part. Since the complainant had not deposited any amount with the OPs, the latter therefore could not have initiated the work of repair. There was, therefore, no deficiency in service on their part in this respect.

14.               We have gone through the impugned order dated 10.2.2010 passed by the learned District Forum and find the same to be in detail except for the reasons mentioned above. There is no other deficiency on the part of OPs No.1 and 2 and the impugned order so far as OPs No.1 and 2 are concerned is hereby maintained.

15.               The complainant deposited Rs.30,000/- vide Annexure R-8 and paid another amount of Rs.6500/- vide receipt no. 3847 before taking  the delivery of the car on 23.9.2008 vide Annexure R-9. The complainant is, therefore, entitled to the amount of Rs.7,533/- along with VAT and other taxes and the labour charges applicable thereto. OP No.3 has delayed the payment of the said amount without any reason and caused mental and physical harassment to the complainant. They shall, therefore, pay Rs.10,000/- to the complainant for mental and physical harassment and Rs.10,000/- as costs of litigation. The amount of Rs.7,533/- along with taxes and labour charges would carry interest @12% per annum since 1.11.2008 (30 days after the report of the surveyor Sh. G. S. Riar) till the amount is paid to the complainant. The entire amount shall be paid within one month from the date of receipt of certified copy of this order failing which it will carry interest @18% per annum w.e.f. today till the payment is made to the complainant.

16.               Copies of this order be sent to the parties free of charge.

Pronounced.

27^th January 2011.

Sd/-

[NEENA SANDHU]

PRESIDING MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Ad/-

STATE COMMISSION

(Appeal No.163 of 2010)

Argued by:          Sh. P. K. Kukreja (Advocate), appellant in person.

                        Sh.Anupam Bansal, Advocate for respondent No.1.

                        Sh. Vikas Jain, Advocate for respondent No.2.

                        Ms. Manpreet Kaur, Advocate, proxy for

                        Sh. Rajneesh Malhotra, Advocate for respondent No.3.

Dated the 27^th day of January, 2011.

ORDER

                    Vide our detailed order of even date recorded separately, this appeal has been disposed of in the terms as mentioned in the detailed order.

(JAGROOP SINGH MAHAL)                                  (NEENA SANDHU)    

                MEMBER                                      PRESIDING MEMBER