Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order : 22.01.2016

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To get the defects in the said Ford Fiesta Car removed permanently so the car may run smoothly on the road.
2. To replace the said Ford Fiesta car with a new Fiesta car, if defects are not being removed permanently.
3. To direct the opposite parties to pay the extent of amount involved being Rs. 11,00,000/- ( Rs. Eleven Lac only ) the value of the car, and Rs. 7,00,000/- ( Rs. Seven Lac only ) for compensation and legal cost, total amounting to Rs. 18,00,000/- ( Rs. Eighteen Lac only ).

2. Brief facts of the case as asserted by the complainant is as follows:-

1. There is an Agency of FORD for selling ford cars namely Priyadarshi Ford, bailey Road, near Saguna More, Patna. The complainant came in contact with the Agency, Priyadarshi Ford for purchasing a Ford Car namely “ FORD FIESTA”  a lower model car and accordingly booked the same on 20^th September 2011 after depositing Rs. 51,000/- in the Agency at patna with assurance as made by the Agency that same will be delivered in Dipawali Festival or nearly about 24.10.2011.
2. When no delivery of booked car was made in time, then complainant contacted the agency on 08.12.2011, then official of the agency replied that aforementioned model, is not available in plant and thus it can not be made available, in alternative another model car in higher range may be delivered.
3. The Sales Manager of Priyadarshi Ford had also informed and suggested the complainant that if they go to upper model 1.50 (D) Titanium, heavy discount on vehicle will be given on payment of Rs. 18,000/- extra. Accordingly this complainant deposited rest of amount on 3^rd December 2011 for another model car i.e. New Fiesta 1.50 Dis. D. White. Thereafter New Fiesta 1.50 Dis. D. White was delivered to the complainant on 26.12.2011.
4. It has been further asserted that during warranty period, car of the complainant got break down on 16.10.2013 and after calling at toll free number, they toed it after lapse of 15 hours and till 21.10.2013 said car was not free from troublesome. Thereafter complainant have to complain about inaction/action of the dealer i.e. Priyadarshi Ford, to the higher authorities of Ford through internet on 21.12.2013. Thereafter with regard to car of the complainant bearing Registration No. BR – 01BF – 2500 several communications were made between the complainant and Ford Company officials, then complainant were informed through e mail that engine failure of car is due to driving in water logged conditions, hence, under warranty period as per Ford Warranty policy such engine failure of car is not covered. In other words such fault in engine cannot be removed.
5. It is relevant to indicate here that said dealer at Patna has estimated the cost of repair to the tune of Rs. 2,79,943/- and the amount will have to be paid by the complainant as appears from estimate for cost of repair dated 29.10.2013 ignoring the fact that said car is under warranty period.
6. It is said that engine failure was due to the entry of water inside the engine as said vehicle was driven in water logged condition. It is made clear that in the month of November, December there was no rainy season or any natural calamities had come, therefore, the stand taken by the dealer/ agency that due to driving in water logged condition. It is further asserted that the break down occurred near gate of Hon’ble Patna High Court where there is no water logging due high lay out of the land and road.
7. It is made clear that said car of the complainant is still lying idle in the service centre at Patna dealer and nothing is happening because dealer is sitting tight over the matter that unless the repair amount is not being paid, the problem of car cannot be solved.
8. Hence the complainant is facing lot of problem and he with his family members are compelled to travel from one place to another place by hiring taxi daily at the cost of Rs. 2,000/- per day for the latches on part of opposite parties. It is said that several times parts were broken and removed by the agency on 26.10.2013. Major parts such as steering column was damaged which was removed and installed in the warranty mode. ( In this car ), Several times several defects arose and removed by the service centre. Mainly this car has manufacturing or mechanical defect.
9. During these periods several complaints/ defects were found and made on several occasion and the complainant has to go to the service centre for removing the defects in this car after exhausting his time and money and also the suffering irreparable loss in his business. It is unfortunate that Ford Ltd a reputed Firm/company in the world class competition, a classic performance, a long experience of selling but dealer and its employees of the centre at Patna act had behaved not properly and their action are of criminal nature by using rough language.
10. The complainant has become exhausted with repeated complaints/ defects found in the car. The complainant has got service history showing the number of dates on which complaints were made and removed accordingly.
11. This complainant is a Director of a reputed Private limited Company having good moral, social and Gentle reputation in the market and this complainant has become fade – up with the non responsible and negligence of the opposite parties and ultimately a legal notice dated 21.01.2014 was sent to the opposite parties noticing them and requested them to get the car in question free from any fault/defects and hand over the same to the complainant in good condition. Legal notice dated 21.01.2014 send by the complainant is replied by Dua Associates, Advocates and Solicitors, at Chenai on behalf of Ford India Private Ltd. ( FIPL ) stating therein that if the complainant requires rectification of the vehicle, it may approach the dealership which is always ready and willing to extend its full support but at the cost of the complainant.
12. It is stated and submitted that total amount to the tune of Rs. 11,00,000/- had made cost of the said car.
13. It is relevant to indicate here that such New Fiesta was/is under the period of warranty/ Guarantee but such car is sitting idle for want of repairing.

3. The Opposite Party no. 1 and 2 in their Reply have submitted as follows :-

1. The very outset, allegations made by the complainant in the complaint are false and frivolous and the same has been filed with the ulterior motive to harass and defame the answering opposite party. The complaint is an afterthought and the complainant is deliberately trying to distort the facts of the case to suit his own convenience in order to mislead the forum. In fact the complaint is not maintainable before this forum and the same is liable to be dismissed at its threshold.
2. There is no defect in the vehicle and as such there had been no deficiency in the service rendered by opposite party no. 1. It is submitted that the alleged issue of manufacturing defect with the vehicle does not exist at all which is even confirmed by the expert technicians of the authorized dealership where the vehicle was reported for repairs. The breakdown of the vehicle had occurred due to water entering the vehicle’s engine as evident from the photographs taken at the time of the inspection of the vehicle. the vehicle was driven in contravention to the conditions contained in the owner’s manual that the vehicle should not be driven, started or cranked in water logged areas or driven in water above the prescribed limits. The vehicle if is driven in such a condition then the engine gets damaged as in the present case. The same is also breach of the warranty obligation of the complainant to abide by the instruction prescribed by the answering opposite party in operating the vehicle. The problem with the engine is not due to any manufacturing defect in the vehicle. The complainant is an afterthought and the complainant is deliberately trying to distort the facts of the case to suit his own convenience in order to mislead the forum. In fact, the complaint is not maintainable before this forum and the same is liable to be dismissed at its threshold.
3. The complainant has miserably failed to establish in his complaint that a particular kind of defect falling within the purview of inherent/ manufacturing defect had persisted in vehicle as neither any engineer’s report nor any other convincing material had been filed before the forum.
4. The complainant has not approached this forum with clean hands and concealed material facts pertaining to the car in question as the complainant has intentionally failed to disclosed the fact that the said car had been damaged due to negligence and careless driving. The car had been earlier driven in water logged area which had caused damaged to the engine. The aforesaid damage to the engine was not due to any mechanical defect in the car but due to negligent and careless act of the driver of the car. Moreover. It is a well settled principle that where the complainant had not come to the redressal agency with clean hands and concealed material facts in the complaint and inter alia on this ground complaint was liable to be dismissed.
5. The legal relationship between opposite party no. 1 and its authorized dealer i.e. opposite party no. 2 and 3 is on a principle to principle basis. Therefore, each opposite party is liable for its own respective actions and none assumes liability for the action of the other. It is only in the case of any manufacturing defect that opposite party no. 1 is required to meet its obligations as per the terms of the warranty. Since the present complaint does not pertain to any manufacturing defect, impleading opposite party no. 1 in the present complaint is uncalled for and baseless.
6. The vehicle had been extensively used and driven for more than 53969 K.M. till October 2013. Further, during the warranty period there was no complaint with regard to any manufacturing defect and only routine services and replacement/ change of the parts that were subject to normal wear and tear replacement/ repairs of the parts necessitating on account of damage to parts arising due to multiple accidents suffered by the vehicle had been replaced/ repaired during the usage of vehicle. since, the present complaint is not a case of any of manufacturing defect in the vehicle therefore, present complaint cannot be maintainable against the answering opposite party.
7. The warranty obligation of opposite party no. 1 is limited only to the extent of repair or replacement of the part (s) which proves defective within the warranty period at no charge to the customer for parts and labour. In this regard reliance is placed on the judgment of the Hon’ble Supreme Court of India in Maruti Udyog Ltd. Vrs. Susheel Kumar Gabgotra and Anr. reported in AIR 2006 SC 1586 had categorically held that the obligation of manufacturer of the vehicle under warranty is limited only to the extent of repair or replacement of any part found to be defective within the terms and period of warranty. The warranty condition clearly refers to the replacement of the defective part not of the car. Since the warranty for the car in dispute is not applicable for carrying out repairs arising due to the negligent act of the complainant thus, there is no liability of the answering opposite party whatsoever to repair or replace the damaged parts under warranty.
8. The complainant has got no locus or cause of action to file the present complaint again the answering opposite party as from the perusal of the complaint it is evident that there is no allegation whatsoever against the answering opposite party, therefore the present complaint is liable to be dismissed qua opposite party no. 1. Further, opposite parties share principle to principle relationship wherein each party is responsible for its respective action and none assumes liability of the other.

4. The Opposite Party no. 3 has filed written statement stating the following facts :-

1. The present complaint is not maintainable against this opposite party either in law or facts.
2. The opposite party no. 3 submits that the complainant has purchased the car from Patna because this opposite party is dealer of Ford India Pvt. Ltd.
3. Since the Ford India Pvt. Ltd. has filed detailed written statement and being dealer of Ford India Pvt. Ltd., this opposite party is supporting the version of Ford India Pvt. Ltd.
4. The complaint is not maintainable on merit also because the vehicle is not suffering with inherent defect. The complainant has to prove his case in strict sensue.
5. The present complaint is fit to be dismissed with cost for unnecessary harassment to this opposite party.
6. This opposite party reserves his right to file additional written statement/ evidences, as and when required during hearing of this case.

5. The Complainant in his Reply to reply filed by opposite party no. 1 and 2 has submitted as follows :-

1. The complaint was filed before the court based on the facts which are related to inherent defects in manufacturing of the car and similar defects were noticed in the same model of this car by people of other parts of India. The dealer/ company have taken plea in their cases also that engine of the car got seized due to driven in water logging condition or water leakage in engine.
2. The claim of company is totally baseless, false and fabricated just because the vehicle after purchase was sent to their workshop about 15 times for rectification of one or another defects and finally its engine got seized near Hon’ble Patna High Court on 15^th October 2013 within its warranty period ( date of purchase 26^th December 2011). ( warranty period 24 month from date of purchase or 1.00 lac kilometers run whichever is earlier. The reason adduced by company that engine got seized due to leakage of water into the engine because of being driven under water logging condition is totally false and baseless. The engine of vehicle got seized near Patna High Court building which has no history of water logging.
3. It has been vehemently asserted that the photograph of the vehicle was taken not in presence of owner and it is quite possible that they must be knowing that same defects have been observed by other owners also in other parts of the country and everywhere same defense have been taken by them.

The photograph should have been taken in presence of the owner but they failed to do so. Moreover car is in their possession after toeing. The reason of driving the car in water logging condition was explained to the owner after lapse of considerable time and even not within reasonable period of say 3-5 days of its lifting and annexure 1 contains 13 photographs which were produced just to misguide the court and harass the owner. It should have been personally explained to the owner who was in regular touch with then through their toll free number.

4. The owner of the vehicle has reported the company that vehicle is giving a continuous abnormal noise and moreover owner is not a automobile engineer and he has taken the trouble of sending his car to the company workshop only about 15 times for rectification of one or another defects but it was not ever told to him that engine of the car got seized due to entrance of water in engine for the reason best known to the company/its dealer/its engineer. As such reason adduced by company is baseless and false.
5. The reason adduced by the company that vehicle got damaged due to careless and negligence driving is totally false. The driving license was issued to the owner about 15 years ago and he has no history on accident. Moreover, there is no sign of any accident on any of the parts of the car. That the company has taken defense at one place that engine got seized because it was driven in water logging condition and another point they have taken the plea that vehicle got seized due to negligence and careless driving. Both the reasons adduced by them are contradictory. It has been mentioned in terms and condition of warranty “ if a vehicle is misused/abused ( page no. 5 clause no. 7 of warranty book ) it will not cover any warranty and because of this very reason they are raising same point again and again that car was driven under water logging condition and the identical reason was adduced by them in complaint of owners of different parts of country with a view to establish misuse or abuse of car.
6. The company has sought relief from the court that relief should be extended to owner only after obtaining technical report. After keeping the car in an open sky carelessly for about more than one year they are taking the plea of technical report to harass the owner. They have opined earlier that engine got seized because of being driven in water logging condition based on their technical report and now they have again shouting another technical report, it looks ridiculous. The dealer is an authorized agent of the company and both of them are jointly and severally liable for any damage which may arise due to manufacturing defects in the car. The owner is liable for negligent driving, taking services from other than authorized dealer but the owner has never done any such act and at all occasions the owner approached only the authorized dealer’s service centre. As such, the owner cannot be held responsible whereas the dealer and company cannot evade from their responsibilities.
7. In reply to reply to reason adduced by the company/dealer that replacement of various parts is a routine matter and no manufacturing defects were ever reported to then and car had a run of 53969 km during a period of 21-22 months with an average run of 76 km per day. It is stated that the car was sent to their service centre for about 15 times and frequent replacement of various parts establishes that the parts implanted in the car was not of standard quality and seizure of engine was advised to the owner on 29^th October 2013 while car was toed after 15 hours of its reporting on 16^th October 2013.
8. The company and dealer are taking the plea to refer the matter to civil with a delay the disposal of case as they are quite aware of the manufacturing defects in the car because owners of same model of car also facing similar problem. They are challenging the jurisdiction of Consumer Forum which is a competent constitutional body to take care of genuine grievance of consumer. Nothing has been concealed and every fact was brought to the knowledge of dealer/ company and as well as to Hon’ble Court and documentary evidences have been annexed to the original and supplementary written statement. As such, we request the Hon’ble Court not to accede to their request and disposal of case at the car at their end only.
9. The plea taken that the owner has no local standi to file a complaint in the Consumer Forum is totally baseless as the owner has approached the court as a bonafide owner and after being harassed by the company/ dealer. Further, the owner has complied the rules set by the company i.e. took the help of only authorized dealer, parts were replaced by dealer only with original parts, as claimed by them but the company and dealer failed to discharge their duties of complying the action of charging defective parts of the car including its engine.

The facts asserted by the respective parties have been narrated briefly in the forgoing paragraphs.

We have carefully gone through the entire petition such as complaint petition, supplementary affidavit on behalf of the complainant, a written statement and reply of the parties etc.

It is the simple case of the complainant that when the said Ford Fiesta Car was not given to the complainant by opposite parties then as per advise of opposite parties he deposited Rs. 18,000/- for higher model i.e. New Ford Fiesta 1.50 DLS D White Car of Ford company which was delivered to him on 26.12.2011. From supplementary affidavit filed by the complainant it is crystal clear that there was abnormal noise in the engine since the date of purchase which was brought in the knowledge of the service engineer of the dealer who assured the complainant that it will be alright after the drive of few thousand Kilo meters. It further transpires from supplementary affidavit that after driving the Car 3 – 4 kilo meters it was notices that the Car got heated and it was sent to workshop of the company on 7^th Feb 2012 after run of 2800 Kilo meter. The aforesaid car was sent to the company for removing the aforesaid defect again on 14^th March 2012. The Car was also sent to the workshop of the company on 26^th March 2012, 12^th June 2012, 8^th October 2012, 10^th October 2012, 26^th October 2012, 22^nd January 2013, 19^th March 2013, 4^th March 2013, 11^th April 2013, 27^th April 2013, 29^th May 2013, 3^rd August 2013, 15^th October 2013 and lastly on 16^th October 2013 it was towed by the dealer. It further transpires that on 29^th October 2013 a bill of Rs. 2,79,940/- was given to the complainant. It is admitted case that the Car is still lying in the Service Centre.

Opposite party no. 1 and 2 had filed a preliminary objection that vehicle was driven in the contravention to the condition contained in the owners manual that vehicle should not be driven or started or cranked in water logged area or driven in water above the prescribed limit.

It has been further asserted in preliminary reply on behalf of opposite party no. 1 and 2 to the complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986, this case is not maintainable.

It has been further asserted by opposite parties that as the Car was driven in the water logged area above the prescribed limit and hence the engine developed trouble for which the complainant is responsible.

It has been further asserted by the opposite party no. 1 and 2 that the aforesaid Car was inspected and the engine was photographed which clearly proves that the Car was driven in water logged area.

It has been submitted that “ the ingress of water has resulted in damage to the engine. The complainant has also filed reply of the aforesaid reply of the opposite parties stating therein that the aforesaid photographs were taken in absence of the complainant. It has been also submitted by the complainant that the inspection of the Car was also done in absence of the complainant.

It is needless to say that the facts asserted by the complainant that the Car was towed from the main gate of the High Court has not been denied.

Opposite party no. 3 has also filed written statement stating therein that since the Ford India Private Ltd. had filed detailed written reply statement and being dealer of Ford India Pvt. Ltd. this opposite party is supporting the version of Ford India Pvt. Ltd. At the fag end of this case the learned counsel for the complainant has submitted that complainant is still paying the EMI of the aforesaid Car. The counsel for the opposite parties has submitted that without examination of the Car by expert in terms of provision of Consumer Protection Act it cannot be held that there was manufacturing defect in the engine.

It is needless to say that the complainant has filed a detailed chart showing that the Car was sent to Service centre several times since the date of purchase.

The supplementary affidavit filed by the complainant is exhausting and on behalf of opposite parties it has not been contradicted that the aforesaid Car was sent to service centre several times for defects. We have mentioned some of the dates given in the supplementary affidavit on which the Car was sent to the service centre. There is no any evidence to show that the car was examined in presence of the complainant and the photographs were taken in presence of the complainant. On behalf of the complainant it has been submitted that the Car was lying and rusting in service centre for the two years.

We are of the view that it was the duty of the opposite parties to get the Car examined and photographed in presence of the complainant after intimation to the complainant and now no purpose will serve in getting the aforesaid Car examined by the experts because nothing will come out as several parts of the Car might have got rusted and spoiled due to laps of time

It is needless to say that opposite party no. 1 and 2 are reputed company having multiple resource while the complainant is a simple citizen who has purchased the Car on EMI.

Hence we are not willing to send the same Car for expert examination on technical pretext in the present circumstances.

In view of the aforesaid facts and circumstance we have no option but to hold that the Car in question was suffering from manufacturing defect and by not removing the defect in time, the opposite parties have committed deficiency for which they are responsible.

We direct the opposite parties jointly and severally to replace the said Ford Fiesta car with the new car of same model to the satisfaction of complainant and if it is not possible then the amount Rs. 11,00,000/- ( Rs. Eleven Lacks only ) i.e. total amount invested by the complainant in the car till the date of final breakdown be paid to the complainant.

It is made clear that after replacing the aforesaid car with new car as per direction made above, the old car which is in the custody of opposite party no. 3 shall be property of opposite party i.e. company.

The aforesaid direction of the Forum must be carried out within the period of three months from the date of receipt of this order or certified copy of this order failing which the opposite parties will have to pay an interest @ 12% on the aforesaid amount to the complainant till its final payment.

The opposite parties jointly and severally are directed to pay Rs. 15,000/- to the complainant by way of litigation cost and compensation within the period of three months.

Thus, this complaint petition is stands allowed to the extent indicated above.

                                        Member                                                                   President