Punjab

Moga

CC/15/87

Ankit Goyal - Complainant(s)

Versus

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

Sh. Armandeep Singh

03 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

                                      C.C. No. 87 of 2015

                                                              Instituted on: 3.11.2015

                                                  Decided on: 03.05.2016

 

Ankit Goyal, aged 33 years son of Sh. Parmod Kumar Goyal, resident of 113, Church Road, Ferozepur Cantt. (Punjab).

                                                                                                                                                                      ……….   Complainant 

Versus

 

1.       General Motors India Pvt. Limited, Registered Office: Chandrapura​ Industrial Estate, Halol-389351, District Panchamahals, Gujrat,           through its Managing Director/Authorized Signatory.

2.       Chevrolet Sales India Pvt. Limited, Chandrapura Industrial Estate, Halol-389351, District Panchamahals, Gujrat, through its                       Managing Director/Authorized Signatory.

3.       Padam Cars Pvt. Limited (Authorized Dealer of Chevrolet Sales India Pvt. Ltd.), Near Majestic Resort, Ferozepur Road, Moga.

 

                                                                                                                                                                    ………. Opposite Parties

 

 

Complaint under Section 12 of the Consumer Protection Act, 1986.

 

 

 

Coram:      Sh. Ajit Aggarwal, President

                   Smt. Vinod Bala, Member

                   Smt. Bhupinder Kaur, Member

Present:      Sh. Armaan Deep Singh, Advocate Cl. for complainant.

                   Sh. Vishal Jain, Advocate Cl. for opposite parties no.1 & 2.

                   Opposite party no.3 exparte.

 

ORDER :

(Per Ajit Aggarwal, President)

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against General Motors India Pvt. Limited, Registered Office: Chandrapura Industrial Estate, Halol-389351, District Panchamahals, Gujrat, through its Managing Director/Authorized Signatory and others (hereinafter referred to as the opposite parties) for directing them to refund Rs.14,820/- charged on account of change of turbo with interest @ 18% p.a. from the date of payment i.e. 17.10.2014 till realization, to refund Rs.27,467/- charged on account of overhauling of engine with interest @ 18% p.a. from the date of payment i.e. 25.11.2014 till realization, to refund of Rs.1,10,219/- on account of installation of new engine with interest @ 18% p.a. from the date of payment i.e. 10.8.2015 till realization to the complainant. Further opposite parties may be directed to pay Rs.1,00,000/- as compensation on account of causing harassment, financial loss, mental pain and agony and to pay Rs.11,000/- as litigation expenses or any other relief which the complainant is found to be entitled may also be granted.

2.                 Briefly stated, the facts of the case are that the complainant purchased a car Chevrolet Beat Diesel TCDI LS BS4 having Engine no.10AB5Z112380050 and VIN no.MA6BFBHNBBT069190, bearing registration no.PB05V-4001 from opposite party no.3 for a valuable consideration of Rs.4,74,501/- on dated 11.09.2011, manufactured by opposite party no.1 and supplied by opposite party no.2. The warranty of the said vehicle was extended by opposite parties jointly and severally upto three years or 100000 kilometere whichever is earlier. The complainant followed the service scheduled as directed by the opposite parties. However, the engine of the car in question started giving trouble within warranty period. The complainant complained about the same and also pick up of the car in question, but opposite party no.3 did not care about it and every time used to do running repair and did not listen to the complainant with regard to engine problem of the car in question. Therefore, even after service of the car in question on 14.2.2014, the car in question could not run, therefore the complaint brought it to the workshop of opposite party no.3 on dated 18.2.2014 and the opposite party no.3 replaced the Turbo on 18.2.2014 under warranty, as the vehicle covered only 83643 kms. Thereafter Turbo charger was also replaced on 14.3.2014. However, even after replacement of the Turbo, problem of engine remained persisted. The complainant made a complaint about the same on covering upto 83970 on 14.3.2014, 88875 on 10.4.2014, 93067 on 4.6.2014 and 97659 on 9.7.2014 within warranty period, but every time opposite party no.3, after minor repairs and casual check-up assured the complainant that the car in question is having no problem. The complainant brought the vehicle on dated 14.10.2014 on first paid service, but the opposite party no.3 intentionally did nothing on the first paid service in order to show that after elapse of warranty the vehicle had no defect, whereas the vehicle could not run within warranty period. After elapse of warranty period i.e. covering of 100000 kilometers of the vehicle on 17.10.2014 on second paid service the vehicle was brought with the same problem, then opposite party no.3 again changed Turbo on dated 17.10.2014, when the car covered 105267 kms and the complainant was charged Rs.14,820/-. Even after change of turbo on dated 17.10.2014, the problem still persisted and third paid service on dated 25.11.2014, when the vehicle covered upto 106613 kms, the complainant brought his car to opposite party no.3 with the same complaint which was being made within the warranty period, then the opposite party no.3 overhauled the engine of the car in question and charged the complainant for Rs.27,467/-. This fact fortify that the engine of the car in question was defective and was having manufacturing defect, which required replacement or overhauling, but the opposite party no.3 did not do this job during warranty period and did the same after warranty period. However, the complaints were being made within warranty period. Therefore the complainant is entitled for refund of Rs.27,467/- with interest. The opposite parties had rendered negligent and deficient services to the complainant, as the opposite parties did not care about the complaints of the complainant and did not overhaul the engine or replace the same within warranty period and changed turbo twice. Further the opposite party no.3 did not bind the engine properly on overhauling of the engine in question on dated 25.11.2014, due to which the engine seized on covering of 112671 Kms. This happened due to non-binding of the engine properly after overhauling, as the rods inside the engine functioned with due to loose engine and made hole in the engine, which further caused leakage of the engine oil and resultantly engine got seized. Thereafter, the car in question again brought to the opposite party with the above said complaint of seizing of engine, due to non bonding of the engine properly, but the opposite party no.3 did not ready to admit its fault and remained adamant to repair the vehicle at the cost of the complainant. In compelling circumstances, the complainant had to pay Rs.1,10,219/- for installation of new engine vide three separate bills dated 10.8.2015 to opposite party no.3. The said amount was illegally and wrongly charged from the complainant, as the engine got seized due to negligence of the opposite party no.3 as it did not bind the engine properly at the time of overhauling of the engine. Further more the engine of the car in question was having manufacturing defect therein from very beginning, complaints of which were being made during warranty period, therefore, the complainant is entitled for the refund of Rs.1,10,219/- with interest from the date of payment. The complainant purchased the car in question from opposite party no.3, manufactured and supplied by opposite party nos.1 & 2 respectively. Therefore, all the opposite parties are liable for manufacturing, supply and sale of the defective car in question to the complainant. Due to negligence, deficiency in service and unfair trade practice, the complainant has to suffer harassment, mental pain, agony and financial loss. Hence this complaint.

3.                Upon notice, opposite parties no.1 & 2 appeared through their counsel and filed written reply taking certain preliminary objections, inter alia, that the present complaint deserves to be dismissed on the ground of delay and latches itself. As per the Consumer Protection Act the limitation for filing the present complaint is prescribed as 2 years, but the complainant has filed the present complaint after 5 years of the cause of action. The delay and latches which are attributed to the complainant shows his malafide intention as for good long 5 years he remained mum as he had taken all benefits from the opposite parties; that the present complaint also deserves to be dismissed as the same is barred by warranty conditions of the vehicle in question. The complainant throughout his complaint had stress on the warranty agreement of the vehicle in question, a copy of the warranty agreement is annexed herewith as Annexure OP1/1, a bare perusal of which shows that the warranty of the vehicle in question was up to 3 years after its purchase or up to one lac Kms, whichever is earlier. In the present case admittedly the vehicle in question was purchased on 11.9.2011 and it had completed 3 years on 11.9.2014 and it had completed one lack kms before 14.10.2014, in that way the vehicle in question is not under warranty. Further a bare perusal of the above mentioned warranty agreement shows that the liability of the opposite parties no.1 & 2 during the warranty period is limited only to the extent of repair work only if any of the defect is stated and proved to be covered under warranty then it was to be repaired without charging even a single penny from the complainant under warranty. It has been further submitted that when there is an agreement/contract of warranty then both the parties are bound by that and nobody can be asked to perform any act beyond the same; that the complaint of the complainant also deserves to be dismissed on the ground of malafide, as the complainant has not mentioned the fact that the complainant did not follow the maintenance schedule after change of Turbo Charger Assembly and after 14.8.2012, the complainant reported for paid service first time on 3.5.2013 at the mileage of 57977 kms, that is after 24000 kms and then it had reported for paid service at the mileage of 74188 kms on 7.4.2013 i.e. after about 20000 kms for any service, the complainant had not followed the service schedule properly due to which engine oil and engine filter are suppose to be replaced properly time to time and if they are not replaced as per the service schedule, then at that time the complainant is at fault, but in the present complaint the complainant had mislead this Forum by stating that the had follow the service schedule properly. The complainant had further concealed the fact that after overhauling on 25.11.2014, the complainant had hit the vehicle in question due to his negligent driving from the bottom side of the engine and due to that bad hit the engine oil pen of the vehicle in question was badly hit from the bottom, which resulted into leakage of oil, which caused lack of lubrication to the engine and resulted into seizure of it. This shows negligent act on the part of the complainant. It has been further submitted that as on 14.3.2014 when the complainant approached the authorized workshop, at that time it was brought to the notice of the complainant that engine is not getting proper oil as the service/maintenance schedule was not followed by the complainant properly, but the stated that he want just his Turbo charger to be replaced under warranty, the said act was done to the satisfaction of the complainant, then the complainant again approached with the same problem on the mileage of 105267 kms, even at that time the complainant pressed that he does not want to any repair to the engine, but he insisted for change of Turbo charged assembly, the same was replaced on paid basis as the vehicle was not covered under warranty. All these facts shows that the complainant is a adamant person and he want to misuse the process of law by way of filing present complaint. There is no privity of contract between the complainant and the opposite party nos. 1 & 2 and there is no unfair trade practice played by the opposite party nos.1 & 2 for which the complainant can ask for any compensation. Further opposite partyno.1 is a manufacturer, who is used to manufacture the vehicle in question, thereafter all the vehicles manufactured by opposite party no.1 are used to be purchased by opposite party no.2, who is a sister concern of opposite party no.1, thereafter opposite party no.2 is used to sell the same in a lot of 25-30 cars to opposite party no.3, who is a separate legal entity and after sale these cars to opposite party no.3, thereafter it is the sole responsibility of the opposite party no.3 to sell them in retail and all the service repair work after the sale in retail is the sole responsibility of opposite party no.3. A bare perusal of agreement between the opposite party no.2 and opposite party no.3 to that effect annexed herewith shows that opposite party no.3 is a separate legal entity which acts on principle to principle basis, as a further perusal of the same would shows that none of the opposite party nos.1, 2 or 3 are legal representative of each other, all 3 acts on principle to principle basis and none of them can be held responsible for the act and conduct of the other, therefore, when as per the above mentioned agreement the repair work is sole responsibility of the opposite party no.3, for the same the opposite party nos.1 & 2 cannot be dragged to the present litigation.

Further submitted that the complainant has stated regarding the manufacturing defect throughout the complaint, but no where complainant has disclosed that what kind of manufacturing defect, the vehicle in question is having, as well as no evidence/expert evidence has been led to that effect. The vehicle in question has run more than 112671 kms in the last about 5 years, in that case it cannot be stated that vehicle in question was having manufacturing defect. In the present case, if the complainant is claiming a manufacturing defect, then the complainant would have some expert evidence in this regard by sending the vehicle in question to ARAI or to some other expert, but the complainant had not done so. Further submitted that the maintenance schedule has been given with the warranty agreement with a specific purpose as with the running of the vehicle, the parts of the engine are used to works for their proper working proper lubrication and proper service is required to be carried out. But in the present case, the complainant had not followed that service schedule in its letter and spirit, the vehicle history of the vehicle in question is annexed herewith, a bare perusal of which shows that the complainant had hardly subjected the vehicle for service and the vehicle in question was brought for first paid service after running of 57977 kms and thereafter it come for second paid service at the mileage of 74188 kms except this throughout the running of 112671 kms, the vehicle was never brought by the complainant for service purpose, in that case it is sheer negligence on the part of the complainant, as the vehicle was required to be serviced after every 10000 kms.

That the present complaint has not been properly constituted u/s 2(1) (c) of the Consumer Protection Act, 1986 and the complainant is not a consumer within the meaning of section 2 (I) (D) or 2 (i) (6) of the Consumer Protection Act, 1986 nor any defects in goods or deficiency in service, as mentioned in section 2 (I) (f), (g) of the Consumer Protection Act, 1986 has been made out. Further submitted that the complainant had never approached opposite party nos.1 & 2 with his grievances, neither any written nor any verbal complaint was made to opposite party nos.1 & 2. The complainant never served any legal notice, which is a condition precedent before filing the complaint in this Forum. There is no deficiency in service in service or unfair trade practice was ever adopted by opposite party nos.1 & 2 against the complainant. Further submitted that as per the law laid down by Hon’ble Apex Court and various High Courts, the compensation claimed by the complainant should be specific, as for what loss, how much compensation is to be granted.

On merits, other allegations made in the complaint have been denied.

4.                 Opposite party no.3 duly served, through separate Registered Cover, but none appeared on its behalf. As such, opposite party no.3 was proceeded against exparte.

5.                In order to prove the case, complainant Ankit Goyal tendered in evidence his affidavit Ex. C-1 in support of the allegations made in the complaint. The complainant also produced on record copies of documents Ex. C-2 to Ex. C-8 and closed the evidence. 

6.                 In rebuttal, the opposite parties tendered in evidence duly sworn affidavit of Sh. Vivek Singh, Engineer, working with Chevrolet India Sales Private Limited as well as Authorized Representative of General Motor India Pvt. Ltd. Ex.OP- 1, 2/1 and copies of documents Ex. OP-1, 2/2 to Ex. OP-1, 2/6 and closed the evidence.

7.                 We have heard the learned counsel for the parties and have very carefully gone through record placed on file.

8.                Ld Counsel for complainant vehemently argued that on 11.09.2011, complainant purchased a Chevrolet Beat diesel TCDI  car worth Rs.4,74,501/-from OPs and warranty of car was extended by Ops upto three years or 100000 Kms. It is further contended that complainant followed the service schedule as per directions of Ops, but engine of car started giving trouble even within warranty period. Complainant brought this fact to the notice of Ops and also complained regarding pick up of the car, but every time OP-3 did minor repair and did not care to listen to his grievance. After service of vehicle in question on 14.02.2014, when it did not start, complainant brought it to the workshop of OP-3 on 18.02.2014 and then, OP-3 replaced the Turbo under warranty as vehicle covered only 83643 km. Thereafter, Turbo charger was again changed on 14.03.2014, but even after replacement of Turbo charger, problem of engine remained there and complainant made complaint regarding same on covering up to 83970 on 14.03.2014, 88875 on 10.04.14, 93067 on 4.06.2014 and 97659 on 9.07.2014 within warranty period, but every time after making minor repairs and casual check up, OP-3 used to assure that there is no problem in the car. Ld counsel for complainant further contended that after lapse of warranty period on 17.10.2014 on second paid service, complainant again approached OP-3 with same problem. Thereafter, complainant again changed Turbo on 17.10.2014 when said car covered 105267 km and OP-3 charged Rs 14,820/- for the same, but even after change of turbo problem still persisted. On third paid service on 25.11.2014, when mileage covered by vehicle was 1,06,613 km, complainant brought his car to OP-3 with same complaint and on this, OP-3 overhauled the engine of car and charged Rs27,467/- from complainant. Replacement of turbo should have been done within warranty period as complaints were being made within warranty period. Moreover, OP-3 did not bind the engine properly, which resulted in seizing of engine and complainant was charged for new one. It is submitted that all this happened due to negligence, deficiency in service and unfair trade practice of Ops. Complainant has prayed for directing Ops to  make refund for amount of Rs 14,820 for changing turbo on 17.10.2014, Rs 27,467/- for overhauling of engine on 25.11.2014 and Rs 1,10,219/-for installation of new engine on 10.08.2015 to complainant with interest from the date of payment till realization. Ld Counsel for Complainant has prayed for accepting the present complaint and has also requested for compensation and litigation expenses. He has stressed on affidavit Ex C-1, in which all the pleadings made in complaint are reiterated and documents Ex C-2 to 8.

9.                Learned counsel for the opposite party No. 1 and 2 however repelled the aforesaid contentions mainly on the ground that the instant complaint is time barred as he had purchased the vehicle in question on 11.09.2011 and present complaint was filed on 3.11.2015 and since then more than five years have lapsed, so the complaint is beyond the period of limitation. Ld counsel for OP-1 and 2 brought to the notice of this Forum that said vehicle completed 3 years of warranty period on 11.09.2014 and it completed one lack Kms before 14.10.2014 and in this way, said vehicle in not under warranty cover. Ld counsel for OP-1 and 2 further averred that complainant did not follow the maintenance schedule after 14.08.2012 as complainant reported for paid service first time on 3.05.2013 at the mileage of 57977 Kms i.e after 24000 kms and then for paid service at the mileage of 74188 kms on 7.04.2013 i.e after about 20000 kms, meaning thereby complainant did not follow the service schedule properly and due to this reason,  performance of engine oil and engine filter came down as these things are required to be replaced properly from time to time and if engine oil and engine filter are not replaced properly as per service schedule, then fault lies only with complainant.  It is further contended by counsel for OP-1 and 2 that complainant hit the car in question from the bottom side of engine due to his negligent driving, thereby causing damage to engine oil pan of vehicle, which caused lack of lubrication to engine resulting into seizures. To controvert the other allegations levelled by complainant, being wrong and incorrect, ld counsel for OP-1 and 2 has put stress on documents Ex OP-2 to Ex. OP-6 and asserted that there is no deficiency in service and trade mal practice on their part and prayed for dismissal of complaint.

10.              From the careful scruitinization of evidence and documents placed on record and hearing the arguments advanced by respective parties, it is observed that complainant purchased a vehicle from Ops and after four years of using the same, he raised allegations of having defect in said vehicle and for directing Ops to refund the payment made by him for service done to said car. In reply Ops brought before the Forum that complainant neither followed the service schedule nor brought his vehicle before them for periodical checking at regular intervals.  Even complainant did not got performed the service of vehicle after completion of mileage as given in service schedule. Ex OP-2 is Retailer Sales and Service Agreement, clearly depicting the fact that both complainant as well as Ops are bound by the terms and conditions of this document and have to adhere to the service conditions set forth by Ops for proper maintenance of vehicle. Owner’s Manual/Ex OP-6 produced by OP-1 and 2 describes all about the service and warranty conditions of vehicle in question. It specifies that warranty for the car in question is for three years or 1,00,000/- kms, from the date of delivery, whichever is earlier. First service was to be done after six months or after completion of 5000 km of mileage, which ever is earlier, second service was required to be done after one year or after completion of 10,000 kms, but from the pleadings made by complainant it is evident that he did not got inspected and performed service of his vehicle within specified time limit. OP-1 and 2 produced service schedule of the car of complainant as Ex OP-1,2/5, perusal of this document shows that the complainant took his vehicle for repair with OP-3 on 14.08.2012 at the mileage of 24,563 km and after it he approached OP-3 for paid service of his vehicle on 3.05.2013 at the mileage of 57,977 i.e. after running of 24,000 kms and after it he approached Ops for service of his vehicle at the mileage of 74,188 on 7.11.2013 i.e after about 18,000 km. After it, he never came for the service of his vehicle and only got minor repairs of his vehicle or filling up the engine oil from  Ops at various times but not got serviced the vehicle and replaced the air and oil filter. Further as per service record, complainant approached Ops on 17.10.2014 at the mileage of 1,05,267 with complaint of engine noise and in the remarks column, Ops stated that TURBO ENTER COOLER HOSE PIPE METAL LEAKAGE AND DUST ENTER INSIDE ENGINE, ENGINE WORK REFUSED BY CUSTOMER. All this shows that complainant himself did not follow the service schedule of the vehicle as per terms and conditions and guidelines of warranty. OP-1 and 2 have produced sufficient evidence to prove their version and  authenticity of documents placed on file and pleadings made by them can not be denied and it proves that complainant has failed  to follow the service schedule prepared by Company, which is mandatory to keep the vehicle in good and working position. Complainant himself is negligent in not maintaining the vehicle properly as to get the excellent performance of his vehicle, he should have complied with all the terms and conditions of service schedule. Complainant can not get advantage of his own wrong. There seems to be no deficiency in service on the part of Ops. On the contrary, complainant has produced only affidavit and there is no cogent evidence to justify the pleadings of complainant.

11.              We have keenly considered the rival contentions in the light of evidence on record. From the conjunctive reading of evidence led by both the sides it is proved on record without any doubt that on complaint made by complainant, car in question was checked by Ops. There is no manufacturing defect in said vehicle. Allegations levelled by complainant regarding occurrence of defect in said car are due to negligence on the part of complainant as he did not follow the service procedure of vehicle as per directions given in service schedule meant for vehicles by Ops. However, those defects by any stretch of imagination cannot be said to be due to some manufacturing defect in the car in question. Except bald assertion by way of the affidavits, complainant has not brought on record any material in support of the fact that car in question has manufacturing defect. Therefore, the question of refund for service payment pertaining to car in question as prayed for does not arise at all as complainant himself failed to follow the maintenance norms and thus, complainant can not insist upon refund of the payment. Since, complainant has failed to prove manufacturing defect in support of relief of refund claimed by him so complaint filed by him is hereby dismissed. However, due to peculiar set of circumstances there is no order as to costs. Copies of the order be sent to the parties free of costs. File be consigned to the record room.

Announced in open Forum:

Dated: 03.05.2016

 

                     (Bupinder Kaur)           (Vinod Bala)                     (Ajit Aggarwal)

                           Member                     Member                              President