Haryana

Ambala

CC/123/2017

Rani Gupta - Complainant(s)

Versus

General Motors India Pvt Ltd. - Opp.Party(s)

In Person

05 Mar 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

           Complaint Case No.  : 123 of 2017.

                        Date of Institution    :     27.04.2017.

                       Date of Decision      :     05.03.2018.

 

Rani Gupta aged about 62 years wife of Sh.Pawan Kumar resident of H.No.480/5 Deepak Vihar, Shahabad (M) District Kurukshetra.

……Complainant.

                                                Versus

1.General Motors India Private Limited, Chanderpura Industrial Estate, Halol District Panchnahals, Gujrat (India) through General Manager.

2.Ambala Automobiles India Limited village Khuda Khurd Near Sharma Petrol Pump, Ambala-Jagadhari Highway, Ambala Cantt.

3.VPS Motors, 145, Sector-2 Urban Estate, Kurukshetra.

……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

BEFORE:       SH.D.N.ARORA, PRESIDENT.

                        SH.PUSHPENDER KUMAR, MEMBER.

                        MS. ANAMIKA GUPTA, MEMBER.

           

Present:          Sh.Parteek Singla, Adv. for complainant.

                        Sh.Harjot Singh, Adv. for Op No.1.                                                                                   Sh.Nikhil Handa, Adv. for Op No.2

                        Sh.R.K.Jindal, Adv. for Op No.3.  

 

ORDER

 

                        The complainant has filed the present complaint against the OPs with the averments that he had purchased a Car Chevrolet Beat Diesel bearing chasis No.14A6BBKBDNEET008379 registration No.HR78-A-5228 from OP No.1 vide invoice Number VPS/14-15/00722 dated 28.05.2014 for Rs.4.32,000/-.  The Ops had given three years warranty for all type of defects upto running of 1 lac KMs. When the car had travelled upto 59575 KMs it started giving problems in its engine and its turbo was also not working properly. He took the vehicle to Op No. 3 on 30.12.2016 but it only replaced the booster for power vacuum brake and asked him to bring the car again in case if the problem persist. The complainant has availed all the free services in the authorized centre and also got the same serviced from time to time as per requirement of the vehicle. On 27.12.2016 the vehicle started giving problem qua lock pickup, defect in clutch pedal. OP No.3 claimed that the defects would be removed but it could not done so and even on 30.12.2016 the brake of the car also got jammed. The OP No.3 without going into the cause of said defect had replaced the power vacuum brake booster free of costs. On 28.02.2017 the engine of the car started giving black smoke with low pickup as was on 27.12.2016. The Op No.3 had demanded Rs.60,000/- from complainant to remove the said defect and had failed to perform warrantee obligations. The complainant came to know that due to manufacturing defect in the said model of car the OPs have replaced the turbo of the engine of the several vehicles. Vide notice dated 01.03.2017 the complainant requested OP Nos. 1 & 3 to remove the fault and to perform warrantee obligations but Op No.3 refused to perform warrantee obligations vide reply dated 04.03.2017, therefore, the complainant took his car from the premises of Op No.3 and brought the same to Op No.2 which changed the turbo of the engine and also removed all defects by charging a sum of Rs.45000/- vide invoice No.000003 dated 01.04.2017. The complainant had to hire a private car on rental basis by paying a sum of Rs.3,000/- per day due to non fulfillment of warranty obligations by Op No.1. The complainant got served legal notice upon the OPs but to no avail. The act and conduct of the Ops clearly amounts to deficiency in service on their part. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C15.

2.                                 On notice Ops appeared and filed their separate replies. Op No.1 in its reply has submitted that it has been wrongly dragged into the litigation without having any manufacturing defect in the vehicle as the whole case of the complainant is that repair work was not carried out under warranty and Op No.1 has no business with regard to repair work and the same was required to be carried out either by Op No.2 or Op No.3. The complainant has not approached to this Forum with clean hands as he had visited the authorized service centre on 13.04.2015 with mileage of 21888 KMs for 3^rd free service and thereafter he never visited any authorized service centre for a gap of 35000 KMs and he visited the authorized service centre on 27.12.2016 when the vehicle was having mileage of 56050. Since the vehicle in question was no covered under warranty, therefore, the repair work was to be done on payment basis.  The vehicle is still doing good as on 21.04.2017 after crossing the mileage of 60911 KMs and there is no manufacturing defect in the vehicle.  On 30.12.2016 the complainant had visited OP NO.3 with problem of brake jam which was diagnosed as the brake booster was seized. On 28.02.2017 the vehicle started giving black smoke with low pickup but it was disclosed to him that the repair work would be done on payment basis at the mileage of 59616 KMs. The fact regarding replacement of turbo by charging Rs.45000/- on 01.04.2017 is not mentioned in the history of vehicle and there is such record on the case file that he has spent Rs.3000/- per day on travelling.  Had there been any manufacturing defect in the vehicle then the same had not even run for a single Kilometer.  There is no privity of contract between the complainant and OP No.1. Necessary services were to be provided by OP Nos. 2 & 3, therefore, present complaint against it is not maintainable.  There is no deficiency in service and unfair trade practice on the part of OP No.1. Other contentions made in the complaint have been controverted and prayer for dismissal of the complaint has been made.

                                    OP No.2 in its reply has submitted that it has changed the turbo of the engine and removed the fault in the car after charging a sum of Rs.45000/- against proper bill No.000003 dated 01.04.2017 and the complainant has no grievance against Op No.2. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

                                    OP No.3 in its reply has taken many preliminary objections such as cause of action, maintainability, territorial jurisdiction and cause of action etc.  The warranty of the vehicle was restricted to the terms and conditions mentioned therein. When the complainant approached the answering OP in December, 2016 the car had run 56299 Kilometer and there was problem in Break Booster only and same was replaced. There was a mandatory condition of getting service of the car from authorized service centre only after every 10000 Kilometer but the complainant had not complied with the terms and conditions. He got the car serviced for the first time on dated 13.04.2015 when it had run 21888 KMs. The warranty was to be given if the complainant had fulfilled the terms and conditions. On 27.12.2016 when the car had run the side mirror was broken and replaced besides replacing of clutch paddle. There was no problem in turbo and engine on 30.12.2016 as on that day break was jam and the break booster was replaced.  The complainant was liable to pay repairing charges which was estimated as Rs.60,000/-. There is no manufacturing defect in the car. The complainant himself has breached the terms and conditions of the policy, therefore, the present complaint is liable to be dismissed. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence the Ops have tendered affidavits Annexure RW1, Annexure RW2/A, Annexure RX and documents Annexure R1 to Annexure R10

3.                     We have learned counsel for the complainant and gone through the material available on the case file.

 

4.                Learned counsel for the OPs firstly argued that this Forum has no territorial jurisdiction to entertain and decide the present complaint. It is admitted case of the parties that the Op No.2 has refused to perform the warranty obligation by demanding Rs.60,000/- from the complainant on account of replacement of Turbo of the engine besides this vide their reply of the notice dated 04.03.2017 Annexure C6 of OP No.3 which also demanded car parking charges from the complainant w.e.f. 28.02.2017 which shows that the Op No.2 has totally refused to perform the warranty obligations without supplying the detail estimate of Rs.60,000/-. The OP No.3 has unnecessarily kept the car about 10 days. It is admitted case that the complainant can get his car serviced/repaired from any authorized service centre of Op No.1. It is also admitted fact that Op No.2 is also authorized centre of Op No.1 when Op No.3 refused to perform the warranty obligation then in such compelling circumstances to lift the car from the premises of Op No.3 to another service centre of Op No.1 at Ambala which is Op No.2. OP No.2 has carried the said job for Rs.45000/- as per bill Annexure C14 and receipts Annexure C13 dated 01.04.2017.  However, Op NO.2 also has refused to perform the warranty obligation and carried out the job against charging which is deficiency in service on the part of Ops.  Since the car was repaired at Ambala from the authorized centre of Op No.1 under compelling circumstances mentioned above which is within territorial jurisdiction of this Forum. Moreover, OP No.1 is carrying the business for gain through its authorized dealer at various places including Ambala in such case also this Forum is very well competent to entertain this complaint. Moreover, no prejudice is shown by the OPs at this stage when entire proceedings has been completed by this Forum regarding trial of complaint at Ambala. In such circumstances this forum reject the plea taken by ops regarding territorial jurisdiction of this Forum.

                             Another question has been raised by the learned counsel of the Ops by stressing on the point that       warranty stand void due to effect that the complainant has failed to get the vehicle serviced from authorized centre i.e. Op No.1 during travelling the vehicle from 21888 KMs to 56056. However, OPs could not show any such terms in the warranty that consumer is required to get the vehicle serviced from authorized centre of Op No.1. According to terms and conditions of the vehicle Annexure R10 it was mandatory to get all free services done from authorized service centre of Op No.1 in order to avail the warranty benefits. In the present case all the free services were got done by the complainant from authorized service centre of Op No.1 i.e. Op No.3. Thereafter the car was got serviced by the complainant either from OP no.3 or other workshops as is evident through Annexure C12 i.e. service record and clear from Annexure C3, Annexure C4 i.e. bill dated 16.04.2016 issued by Vishavkarma Motors, Ambala Cantt. From the said records it appears that the complainant got his car serviced on travelling 21888 KMs and further on the reading 30972 KMs as per Annexure C3 and the vehicle was again serviced on the reading 41035 KMS as per Annexure C4 and further vehicle was serviced on 16.08.2016 at 51896 KMs. The defect has occurred when the vehicle had run 59575 KMs as revealed from the service record Annexure C12 placed on file by the complainant as well as Annexure R8 placed on file by Op No.3. The matter can be viewed from another angle. Had there was any such violation the OP No.3 would not have got the service of the vehicle done when it had travelled 56050 KMs on 27.12.2016 and 56299 KMs on 30.12.2016. Admittedly, the OPs did not charge anything from the complainant while removing the defect in car in such factual position the Ops are estopped from taking such objection by their own act and conduct since they have given the warranty upto 3 years or 1 lac KMs as per the terms and conditions of the warranty condition at Sr. No.2 A in the column of General Annexure R10.  None of the eventuality came on 28.02.2017 as such we hold that OPs were bound to remove the defect by replacing the part of the engine without charging anything from the complainant as per Annexure C12 as well as Annexure R8 (service record).

                             At this stage this Forum took a strict view against Op No.3 who asked the complainant to pay a sum of Rs.60,000/- for the same job which was carried out by Op No.2 for Rs.45,000/- which shows that how various authorized centre deal with the complainant which is totally unfair practice on the part of Op No.3. Complainant must hire the service during the period when the car remained with the authorized centre of Op No.1. Affidavit of the complainant coupled with the receipt Annexure C1 show that he has paid a sum of Rs.93,000/- as rent of the car. However, this Forum is of the view the car was unnecessary retained by Op No.3 who is responsible for the same. This Forum award a sum of Rs.8,000/- on account of rent paid by complainant during the period when the car remained in premises of OP No.3 unnecessary and claim of the complainant regarding remaining period is declined. However, for indulging in unfair trade practice by Op No.3 a burden of Rs.10,000/- is imposed upon it i.e. OP No.3.

                             In view of the above discussion present complaint deserves acceptance. Accordingly, same is allowed with costs which is assessed at Rs.5,000/- to be paid by OPs jointly and severally. Following directions are to be complied with by the OPs:

1. To pay Rs.10,000/- to the complainant by the Op No.3 on account of unfair trade practice as discussed above and Rs.8,000/- on account of rent qua the car paid by the complainant during the period of 10 days.
2. To pay Rs.45000/- to the complainant by Op Nos. 1 & 2 on account of  replacement of turbo of engine and its allied parts (Annexure C13 & Annexure C14) paid by the complainant to OP No.2 on 01.04.2017 alongwith interest @ 9 % per annum from the date of payment till realization of the amount.  In case the amount is recovered from Op No.2 then it is at liberty to recover the same from Op No.1 i.e. manufacturer of the vehicle in question.

 

Order be complied with within 30 days of receiving of the copy of this order. Copy of this order be supplied to both the parties free of cost.  File be consigned to the record room after due compliance.

 

 

Announced on: 05.03.2018                                                                                                                                                           

 

(PUSHPENDER KUMAR)        (ANAMIKA GUPTA)                (D.N.ARORA)

          MEMBER                               MEMBER                                            PRESIDENT