JUDGMENT

                                                             8.1.2010

Justice Pritam Pal, President

 1.       The aforesaid three appeals have arisen out of  one and the same order dated 8.4.2009 passed by the District Consumer Forum-I, U.T. Chandigarh whereby complaint case No.1071 of 2008  filed by Dr.Preet Mohinder Singh  Bedi pertaining to defects in a new car was allowed against opposite parties with a direction to pay an amount of Rs.50,000/- by way of compensation jointly and severally within thirty days, failing which Opposite parties were directed to pay litigation costs of Rs.5000/- and interest on the total amount @ 12% p.a. from the date of filing of complaint i.e. 10.9.2008 till the payment is actually  made to the complainant.  

2.         In fact appeal No.248 of 2009 has been filed by complainant for replacement of the purchased car or refund  of its price.  In the alternative, enhancement of compensation has also been sought. The other two appeals – one  bearing No.279 of 2009 by the dealer  M/s Dynamic Motors- OP No.2 and the other bearing No. 300 of 2009 by the manufacturer M/s General Motors  India Pvt. Ltd.- OP NO.1 have been filed  for seeking dismissal of the complaint. Since common questions of law and facts are involved in these three  appeals,  therefore, we propose to dispose of them  by  this common judgment.    The parties in this judgment hereinafter shall be    referred to as per their ranking before the District Forum.

3.     In nutshell, the facts culminating to the commencement of these three appeals  may be recapitulated thus ;

            The complainant purchased one Chevrolet Tavera Car from OP No.2 on 24.12.2007 for Rs.6,57,000/- vide invoice  dated 24.12.2007 copy of which is Annexure P-1. The said car carried two years warranty but soon  after its  purchase, the complainant noticed some unusual underbody sound in the car besides oil leakage from the engine and as such took it to OP No.2. After service of the car, OP No.2 assured that the said defects have been rectified. However, the said defects   again reoccurred and therefore  the vehicle was  taken to OP No.2 in May, 2008.  The official of OP No.2 after carrying out the necessary repairs handed over the car to complainant in the evening with an advice to visit again after two weeks for its inspection. However, service engineer of OP NO.2 suggested a test drive to ascertain the problem and during that period he told that these sounds are emitted normally from these cars  but  the complainant in order to know if the said unusual sounds occur in other similar cars, insisted for a test drive  and when the complainant was taken for a test drive in a similar demo car there was  no such sound  occurred in the same.   After completing more than 5000 Kms when the car was brought to the workshop of OP No.2 ,the complainant was told that the drive shaft of the car has been replaced and in future the unusual sounds and leakage would not occur.  However, OP No.2 did not open a job card for the reasons best known to them inspite of complainant’s insistence to prepare the same.  It was alleged   that even after replacement of the drive shaft, the unusual sound & oil leakage continued and it was informed to OP No.2, who asked him to visit after two weeks.  In the meanwhile, the car in question also developed a new defect as it started creating sound while engaging reverse gear, which was brought to the notice of OP No.2, who sent its mechanics for repair at the residence of complainant but failed to do the needful.  The car was again taken to OP No.2 on 8.7.2008, which was inspected by their Technical Team.  On the next day, the complainant was informed that OP No.2 had opened the gear box, drive shaft, differential to locate the underbody unusual sounds but they were unable to detect the fault.  The car in question was again taken to OP No.2 on 16.7.2008 with the complaint of oil leakage from differential upon which he was informed that next week whole service team of OP NO.2 would arrive to again dismantle the   car in order to ascertain the cause of unusual underbody sounds and leakage.   The complainant was shocked to know that the OPs had earlier also opened the car so many times and changed the vital parts of his brand new car and yet the problem could not be detected or repaired.  Thereafter the complainant made written complaint annexure P-6  with regard to the defects in his car but nothing positive was done.  On 25.7.2008 the complainant again lodged his complaint  with OPs through registered post, a copy of which is annexure P-7.  The complainant then received a letter from Pratibha Pandey, Manager Customer Assistance Centre of OP NO.1 whereby it was informed to him that he did not bring the car in question for inspection on 30.7.2008 when the technical team of OP NO.1 had arrived at the premises of OP NO.2.  Then on 6.8.2008 the complainant wrote a letter to OP No.1 that though he had taken the car in question more than eight times to OP No.2 but they failed to rectify the defects inspite of the fact that all its major/vital parts were opened many times by OPs and as such a  request was made for replacement of the car which was having   manufacturing defect or its cost should be refunded, but all in vain.  Hence, alleging   deficiency in service and unfair trade practice which caused   great mental tension, agony, physical harassment and financial loss, complainant filed complaint before the District Consumer Forum.  

4.         On the other hand, the case of OP No.1 before the District Forum was that  there was no privity of contract between answering OP and the complainant.  It was stated that there was neither any manufacturing defect, nor  any fault, imperfection, shortcoming, or any deficiency in the quality and nature of the Car.  The answering OP used to supply the cars to OP No.2 and receive its sale price.  The answering OP and OP No.2 act on principle to principle basis as per Mutually Transacted Agreement and none is an agent of the other on any grounds, issues or subject matter whatsoever.  The complainant failed to lead any expert opinion in order to prove the manufacturing defect, if any, as alleged in the complaint.   The noise observed by the customer was found by the service engineer  within the specified limits and absolutely normal.  Moreover, no major defect was noticed by OP No.2 in the said car.  The said car was checked by the Technical Team of answering OP and found it to be within OK specification.  It was denied that they opened the gear box, drive shaft, differential to locate the underbody unusual sound, but was unable to detect the fault.  It was also denied that the complainant was ever informed that the whole car would have to be dismantled in order to ascertain the cause of underbody noise and oil leakage.  It was further denied that complainant brought his car 8 times to OP No.2, rather the car of the complainant was running very smoothly and there was no problem in the same except the normal wear and tear.   

5.         According to OP NO.2  the vehicle  in question was sold to the complainant and he  visited the answering OP on 1.1.2008 only for reassurance check-up and did not lodge any complaint.  The complainant approached their workshop   on 12.5.2008 for first free service and had pointed out underbody sound for the first time along with some other minor complaints, which generally occured due to wear and tear.  All the complaints reported by complainant were taken care of & attended to.  However, it was admitted that there was a faint whistling sound but the same was mended after minor adjustment.  It was also stated that neither there was any defect much less inherent defect in the car, nor the terms & conditions of warranty entitled the complainant for replacement of the car.  It was admitted that complainant again visited the answering OP with the complaint of underbody noise and the same was checked by their Technical Team and detected some faint whistling sound under the body, but the same was having no adverse effect on the running of the vehicle or its performance.  However, after minor adjustments, the complainant was asked to observe  the same and advised to come again if the sound reoccured.   It was denied that whole vehicle of the complainant was opened to detect the source of sound.  It was also denied that the vehicle in question was opened many times as alleged.  It was pleaded  that no major part was opened during any of the visits of complainant.   The  complainant   had approached the answering OP for underbody sound only for four times out of which on two occasions he did not allow to touch the vehicle to find out  the alleged underbody sound and demanded only the replacement of vehicle, which was not acceded to as it was against the terms & conditions of warranty.   

6.          The learned District Consumer Forum after going through the   evidence  and  hearing the learned counsel for parties,  allowed the complaint filed by Dr.Preet Mohinder Singh Bedi  as indicated in the opening part of this judgment. This is how feeling aggrieved, complainant as well as opposite parties have come up in their respective appeals. 

7.         We have heard learned counsel for the parties and have also gone through the material brought on the file .

8.         The contention of learned counsel for complainant is that he had taken his vehicle more than  eight times to the workshop of OP NO.2 from whom the car was purchased. The mechanics and engineers of dealer could not pinpoint the defects which were in regard to unusual underbody sound  and oil leakage from the engine.  Not only that, the engineers of OP No.1 also could not detect and remove the aforesaid defects. In this view of the matter, learned counsel for complainant sought for the relief as prayed for in the grounds of appeal.  On the other hand, opposite parties i.e. learned counsel for dealer and manufacturer have repelled the aforesaid points of arguments raised on behalf of the complainant and then submitted that in fact there was not any major or manufacturing defect in the car purchased by the complainant and whatever minor defects were there regarding steering, noise from dash board or oil leakage were removed. In this regard reference was made to job card of the car annexure A/4.  It was also argued by learned counsel for  OP NO.1 that a special team was also called to inspect the vehicle but the same was not allowed to be  inspected by the complainant.  At the fag end of their arguments, learned counsel for OPs also submitted that there is no expert report qua the vehicle which could show any inherent/manufacturing defect in the car.   

9.         We have given our holistic view to the above rival contentions raised on behalf of the parties and  come to the conclusion that within 10 days of the purchase of vehicle complainant had observed some underbody sound besides leakage of oil in the engine and for that the car was taken to the workshop of dealer- OP NO.2 for the first time on 1.1.2008. Further it is also evident from annexure A-4 relied upon by OPs that there was a malfunctioning in regard to underbody noise, engine oil leakage, belt noise, differential oil leakage etc. as and when the car was taken to the workshop of  OP NO.2. All this goes a longway to show that for checking this vehicle a special team was constituted by the manager of OP NO.1 to get the necessary inspection of the vehicle done as per GMI standard. In this regard a letter was also written to the complainant. However, there is nothing on the file to show if the car was ever inspected by the said team. According to learned counsel for OPs, complainant had not allowed the  inspection of his car.

10.       Be that as it may, we are convinced and satisfied that the  aforesaid defects and malfunctioning in the vehicle were going on for months together after its purchase and for that complainant is proved to have taken his car many times to the workshop of OP NO.2 which is authorized dealer of OP No.1-manufacturer. But the removal of defects could not be  done to the satisfaction of the complainant. We are further of the considered opinion that complainant also failed to bring on file any such evidence which could show if there was any inherent/manufacturing defect in any vital part of the car.  At the same time we have also no hesitation to hold that OPs inspite of bringing the car several times to their place of work failed to do the needful job to the satisfaction of the complainant.

11.       In this view of our foregoing discussion and conclusion we feel that no interference is called for in the impugned order passed by the learned District consumer Forum.

 12.      In the result, all the aforesaid  three  appeals filed by the complainant as well as opposite parties  are hereby dismissed leaving the parties to bear their own costs. 

           Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.