BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 286 of 2015
Date of Institution: 5.5.2015
Date of Decision: 23.5.2016
Sh. Jagdish Raj son of late Sh. Ram Lal, resident of 7/7A, New Pawan Nagar, Batala Road, Amritsar
Complainant
Versus
- General Motors India (P) Ltd., through Managing Director/Chairman,Registered Post Chanderpuri, Industrial Estate , Halol-389357 Distt.Panch Mahals (Gujrat)
- Customer Assistance Centre, Plot No. 15, Echelon Industrial Area, Sector 32 Gurgaon (Haryana) through its authorized signatory
- S.V.Motors through its Managing Director, Near Amritsar Gate, G.T. Road, Amritsar
Opposite Parties
Complaint under section 12/14 of Consumer Protection Act, 1986
Present: For the Complainant :Sh.Viney Khera,Advocate
For the Opposite Parties No.1 &2 :Sh.Amit Bhatia,Advocate
For the Opposite Party No.3 : Sh.Mohan Arora,Adv.
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Sh.Anoop Sharma,Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Jagdish Raj complainant has brought the instant complaint under section 12 and 14 of the Consumer Protection Act, 1986 on the allegations that in the month of December 2012, complainant was interested to purchase the family car . After coming to know this fact, representative of opposite parties No.2 & 3 approached the complainant at his residence and gave him offer to purchase Cheverolet Beat L.S. TCDKM car. At that time it was told by the representative of the opposite party that the said car was a perfect family car having an average of 25.40 km per liter. It was further assured by the opposite parties to the complainant that better service shall be given to the complainant as and when required. It was also assured that free maintenance for a period of three years from the date of purchase of the car shall be given to the complainant in case the said car is purchased from the opposite party. The complainant , believing the version of the opposite party to be true, purchased the said car on 30.12.2012 with the delivery note No. SVM/CH146 having Chassis No. MA 6 BFBJNC CT041925 for Rs. 5,11,040/-. The delivery of the said car was given on 1.1.2013. After the purchase of the car when the same was plied by the complainant, the complainant was shocked to find that the consumption of the diesel per km. of the car of the complainant was very high than told by the opposite party. The car was giving very low average as against the promise made by the opposite party to the complainant. It is pertinent to mention over here that at the time of giving delivery of the car to the complainant, a sticker was also affixed on the car by the company showing specifically that the average of the car shall be to the extent of 25.40 km per litre. The complainant many a times made complaints to the opposite party regarding low average of the car. But, however, it was told by the opposite party to the complainant that average shall improve after three services of the said car. The complainant again found that the car was giving the same average of 18 km per ltr of diesel. In addition to the aforesaid deficiency on the part of the opposite party as stated above, opposite party also failed to give free maintenance for the period of three years from the date of purchase of car to the complainant although that was mentioned in the other various mode of advertisement that the free maintenance period of three years from the date of purchase of the car is to be given to each consumer. Thereafter the complainant made many requests to the opposite party to rectify the aforesaid defect of excessive consumption of diesel per litre , but the opposite party failed to accede to the genuine and legitimate request of the complainant. Whereupon the complainant served a legal notice through registered post on the opposite party dated 4.8.2014, but to no effect. The complainant has made prayer for granting the following reliefs vide instant complaint :-
i) To give direction to the opposite party to replace the said defective car with new one.
ii) To refund the amount paid as labour charges and paid service amount within a period of three years from date of purchasing of car.
iii) To pay compensation of Rs. 2 lacs on account of causing unnecessary physical as well as mental agony and harassment to the complainant.
Hence, this complaint.
2. Upon notice, opposite parties No.1,2 & 3 appeared and contested the complaint.
3. Opposite parties No.1 & 2 filed joint written statement taking certain preliminary objections therein inter alia that the present complaint deserves to be dismissed as having been filed with malafide intention by the complainant. As a matter of fact the vehicle in question is running in good condition and the complainant himself had checked the average of the vehicle in question in his presence at the premises of opposite party No.3 and also noted down in his own hand writing that average of the vehicle was around 23.5 km per litre on road. Copy of the satisfactory note of the complainant is annexed herewith. A bare perusal of that note shows that the complainant himself had visited the premises of opposite party No.3 i.e. S.V. Motors on 30.8.2014 and on the said date the average of the vehicle was tested on the road and it was found that vehicle was giving average of 23.5 km per litre . In those circumstances the law of estoppel debar the complainant from taking U-Turn to state that the car was giving the low average.It is denied that the vehicle in dispute was giving an average of 18 m per litre only. The case of the complainant stands falsified when the complainant himself signed a satisfactory note admitting the consumption of diesel by the vehicle in dispute to be 23.5 km per litre. Further it would be relevant to mention here that average is always dependant upon the driving style of the driver as it has a direct connection of usage of Clutch and Brakes. As such each and every driver can have a different average of a vehicle on the basis of different style of using brakes and clutch ; that the complaint has been filed with malafide intention with a motive to get some undue advantage from the opposite party ; that it would be further relevant to mention here that there was no assurance given by opposite parties NO.1 & 2 as there was no privity of contract between the complainant and opposite parties No.1 & 2 . The present complaint deserves to be dismissed qua opposite parties No.1 & 2 solely on the ground that no manufacturing defect is there in the vehicle in question nor any fault imperfection, short coming or any deficiency in service in the quality or the nature of the car. Opposite party No.1 is a manufacturer and opposite party No.2 is only the Customer Assistance Centre of opposite party No.1 ; that in the present case there is no manufacturing defect in the car in question, without that the manufacturer cannot be held responsible except for the warranty conditions ; that the complaint deserves to be dismissed on the ground of non joinder or mis joinder of parties . Infact opposite party No.1 used to sell all its manufactured vehicles to Chevrolet Sales India Pvt.Ltd., which further used to sell the same to opposite party No.3. But the said Chevrolet Sales India Pvt.Ltd. has not been impleaded as a party by the complainant. As such the complaint deserves to be dismissed on this ground also. On merits facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint with cost was made.
4. In written reply opposite party No.3 also took certain preliminary objections therein inter alia that the complaint filed by the complainant is not legally maintainable and is liable to be dismissed ; that the answering opposite party submits that the complainant has created a false story in his complaint to mislead this Forum by concocting and distorting the facts and circumstances of the present case in order to get undue benefit from the replying opposite party. The present complaint has been filed by the complainant against the opposite parties without any cause of action ; that the vehicle of the complainant is running in perfect condition, but due to adamant nature, he is not accepting the truth that his vehicle is in perfect running condition . As a matter of fact the complainant is levelling false allegations against the opposite parties. Replying opposite party is retailer of Chevrolet Sales India Pvt.Ltd, whereas opposite parties No.1 & 2 are manufacturer of the car in question. Opposite parties No.1 & 2 provide warranty to the customers and replying opposite party has to provide service/repair of the car as per warranty schedule provided by opposite parties No.1 & 2. Replying opposite party is having an authorized service centre at Amritsar, where number of qualified technicians are working and they deal with number of vehicles relating to service and repair of vehicles . Vehicle of the complainant was also checked by the technicians of the replying opposite party and they found the vehicle of the complainant in perfect running condition. There is no problem of low average of the car as alleged in the present complaint. Replying opposite party has been working as per service manual provided by the company and whatever comes under the purview of the warranty, replying opposite party performs its duty accordingly without charging anything from the customer ; that there is no deficiency of service on the part of the replying opposite party, as alleged in the complaint. On merits, it is stated that the complainant himself had approached for purchase of the car in question and as per his own choice the car was purchased by the complainant . A good car was purchased by the complainant and it is admitted that proper service has been provided by the replying opposite party to its customers as and when required. The warranty of the car was provided by the manufacturing company as per the warranty schedule given in the service book. The delivery of the car in dispute was given to the complainant on 30.12.2012 . It is denied that consumption of diesel per km of car was very much high than the one assured by the opposite party. It is found that on 30.8.2014 complainant himself came with his car to service centre of opposite party No.3 and recorded his complete satisfaction regarding average consumption of the diesel and found the same to be 23.50 km per litre. Now the present complaint has been filed by the complainant levelling false allegations against the opposite parties. Remaining facts stated in the complaint have also been specifically denied and a prayer for dismissal of the complaint with cost was made.
5. In his bid to prove Sh.Vinay Khera,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-20.
6. To rebut the aforesaid evidence Sh.Amit Bhatia,Adv.counsel for opposite parties No.1 & 2 tendered into evidence duly sworn affidavit of Sh. Gurpreet Singh Deputy Manager Ex.OP1,2/1 , copy of retailer retail and service agreement Ex.OP1,2/2, copy of letter dated 30.8.2014 Ex.OP1,2/3, copy of gate pass dated 30.8.2014 Ex.OP1,2/4, copy of service and warranty manual Ex.OP1,2/5, copy of history sheet of the vehicle Ex.OP1,2/6 and closed the evidence on behalf of opposite parties No.1 & 2..
7. On the other hand Sh. Mohan Arora,Adv.counsel for opposite party No.3 tendered into evidence affidavit of Sh. Rajesh Kakaria,Attorney holder Ex.OP3/1, copy of gate pass dated 30.8.2014 Ex.OP3/2, copy of satisfaction note dated 30.8.2014 Ex.OP3/3, copy of invoice dated 2.2.2015 Ex.OP3/4, copy of invoice dated 11.9.2015 Ex.OP3/5, copy of job card Ex.OP3/6, copy of vehicle history Ex.OP3/7 and closed the evidence on behalf of opposite party No.3.
8. We have heard the ld.counsel for the parties and have carefully gone through the record on the file.
9. On the basis of the evidence on record, ld. Counsel for the complainant has vehemently contended that it is admitted fact that in the month of December 2012 the complainant purchased the car in question from the opposite parties. At that time, it was assured to the complainant that the car would give an average of 25.40 km per litre. It was further assured that free maintenance for a period of three years from the date of purchase of the car shall be given to the complainant. The complainant bonafidely believing the version of the opposite party to be true, purchased the car on 30.12.2012 for a sum of Rs. 5,11,040/- while the delivery of the car was given to the complainant on 1.1.2013.After the purchase of the car in dispute, the complainant was shocked to find that consumption of diesel per km of the car of the complainant was very high than the average assured by the opposite party to the complainant. Opposite party has affixed a sticker on the car wherein consumption per litre of the diesel was to be 25.40 km while the car was giving the average of 18 km per litre only. The complainant made many requests to the opposite party in that respect, but the opposite parties did not pay any heed. Even the free maintenance for a period of three years from the date of purchase of the car, has not been provided by the opposite party. The complainant issued legal notice dated 4.8.2013 upon the opposite party and on receipt of the notice, complainant was called by the opposite party to visit the show room of the opposite party alongwith the car. Thereafter, the complainant visited the show room of the opposite party, where the car was checked by the concerned engineer of the opposite party. The concerned engineer admitted that the car was giving low average at that time and on the directions of the opposite party, the complainant left the car at the service centre for the purpose of removal of defect. The complainant was called on the next day for taking the delivery of the car. It is further contended that the opposite party assured the complainant that the defect of low average has been rectified and henceforth the car shall give an average of 25.40 km per litre in future. The complainant bonafidely believed the version of the opposite party to be true and took the car from the workshop of the opposite party. However, after few days, complainant checked the average of car and found that it was giving an average of 15-18 km per litre only. Thereafter, the complainant made several requests to the opposite parties to rectify the defect. Even legal notice was served , but opposite parties failed to rectify the defect and they also failed to give free maintenance for a period of three years from the date of purchase, to the complainant.
10. It has further been contended that in reply to the complaint filed by the complainant, it is admitted by opposite parties No.1 & 2 regarding the purchase of the car by the complainant. It is also admitted by the opposite parties in the reply that on account of giving low average, thecomplainant made complaints. But , however, they have taken a false plea that average of the vehicle in dispute was checked and found to be 23.5 km per litre. However, the true facts were that the car was giving average of 16/18 km per litre only. Even the evidence of the opposite party regarding the average of 23.5 km also amounts to deficiency in service because as per written acknowledgement of the opposite party on the sticker affixed on the car which claimed the average of 25.40 km per litre. The complainant in order to prove his case has submitted his affidavit Ex.C-1 alongwith certificate issued by opposite parties as Ex.C-3, Ex.C03, copy of brochure printed by the opposite party wherein it has been specifically mentioned by the opposite party that beat car of their company was giving an average of 25.44 km per litre of diesel, Ex.C-4 is the maintenance record sheet and perusal thereof shows that it has been mentioned that average of car was low. Copy of Insurance policy Ex.C-6 while Ex.C-7 is the legal notice which was served upon by the complainant on opposite party, postal receipts A/cs for Ex.C-8 to Ex.C-10, second legal notice served by the complainant alongwith postal receipt A/cs for Ex. C-11 to Ex.C-14, Ex.C-15 is bill which was issued by the opposite party after service of the car on 2.2.2015 while Ex.C-16 is news cutting as published in the newspaper that the car was giving less average, Ex.C-17 is driving license of the complainant while Ex.C-18 is photograph of the car in question showing sticker affixed on the backside of the mirror which has been printed by the opposite party that the car will give the average of 25.44 km per litre. Ex.C-19 is the copy of RC while Ex.C-20 is the copy of news cutting where it has been published that the beat diesel car of the general motor on account of defects has been called back from the market by the company.
11. It is further contended by counsel for the complainant that the evidence on record proves beyond a shadow of doubt that the complainant has been able to prove his case. Once it is proved that car was not giving average as assured by the opposite parties and the average was quite low i.e. 16/18 km per litre against 25.40 km per litre assured by the opposite parties, there is no escape from holding that the car is suffering from manufacturing defect and the opposite parties may be directed to replace defective car with new car of the same make and model. Further they may be directed to refund the amount paid as labour charges and service amount paid within a period of three years from the date of purchasing of car and further they may be asked to compensate the complainant for the unnecessary physical as well as mental agony and harassment to the complainant to the tune of Rs. 2 lacs.
12. However, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant himself visited the premises of the opposite party No.3 on 30.12.2012 and recorded in his own hand that the car in dispute was giving an average of 23.5 km per litre of diesel. It is now too late for the complainant to contend that the car was giving low average , as compared to the average per km assured by the opposite party. It is also not proved on record that the opposite parties have not provided free service to the complainant during the warranty period of three years from the date of purchase of the car. The opposite parties have placed on record the copy of job card Ex.OP3/6 and copy of vehicle history Ex.OP3/7 which go to show that the opposite parties have been rendering satisfactory service to the car of the complainant as per warranty schedule from time to time. Copy of the satisfaction note dated 30.8.2014 Ex.OP3/3 nullifies the case of the complainant that the car in dispute was giving low average in comparison to the one assured by the opposite parties.
13. Now the question arises as to whether the low average given by the car falls within the ambit of manufacturing defect or not ? Answer to this query finds recorded in judgement ALFA Automobiles –Appellant Versus Gopinath Trading Co. & Anr- Respondents 2006(2) CPJ 524 (Rajasthan ) wherein it has been laid down that the contention of the complainant was that the car was giving low average. The above report does not indicate that the average of the vehicle is low . As such, the allegation of the complainant has not been proved. Moreover, there is no dispute that the fuel consumption is dependent upon various factors like driving habits, driving conditions, adequate maintenance of the vehicle , quality of the fuel, inflation in the tyres of the vehicle, the duration of the use of the vehicle , etc. It is not the case of the appellant that in standard conditions the vehicle showed low average. As such, no manufacturing defect can be attributed on this count. Further , reliance can be had on Swaraj Mazda Ltd. Vs. P.K.Chakkappore & Anr II(2005) CPJ 72 (NC) wherein it has been laid down that the very point of excessive oil consumption could not be said to be a manufacturing defect in the engine. What is shown in his observation is, that running of the “engine is weak and there is every symptom of excessive oil consumption as observed from the engine breather” . How could this be said to be a manufacturing defect, has not been explained even while he is candid enough to say that road test can only reveal the exact damage of the gear box and the clutch which is not possible without wheels and which it did without running the vehicle.
14. Moreover, an average of the car is dependant upon many factors i.e. driving habits, driving conditions, adequate maintenance of the vehicle , quality of the fuel, inflation in the tyres of the vehicle, the duration of the use of the vehicle as well as the urban or rural area where the car was being driven . In this case the complainant has not led any evidence on such factors which determine the average of the car in dispute. In such a situation the ratio laid down in the judgements ‘supra’ is fully applicable to the facts of the present case . As such there is no escape from holding that the car in dispute was not suffering from any manufacturing defect and the complainant has miserably failed to prove his case.
15. Consequently, instant complaint fails and the same is ordered to be dismissed accordingly. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated : 23.05.2016
/R/ ( S.S.Panesar )
President
( Kulwant Kaur Bajwa) (Anoop Sharma)
Member Member
