BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.461 of 2014

Date of Instt. 30.12.2014

Date of Decision: 14.06.2017

Wing Commander (Retd.) Sh. N.K. Kohli son of Sh. Madan lal Kohli c/o Sporting Syndicate Private Limited, Jalandhar. ..........Complainant

Versus

1. General Motors Pvt. Ltd., Registered Office: Chandrapura Indust rial Estate, Halol, District Panchmahals, Gujrat, India through its Managing Director/Director Works.

2. Aakriti World, Opposite Hotel President, Jalandhar through its Managing Director/Partner.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Sh. Parminder Sharma (Member)

Present: Sh. Umesh Ohri, Adv. Counsel for the complainant.

Sh. Gaurav Sharma, Adv. Counsel for OP No.1.

Sh. Vikas Sood, Adv Counsel for OP No.2.

Order

Karnail Singh (President)

1. This complaint presented by the complainant, wherein alleged that the opposite party No.1 is the manufacturer of Car Cheverolet Cruze and the OP No.2 is a distributor of the OP No.1 in the area of Jalandhar. Both of the OPs had offered for sale the car Cheverolet Cruze at Jalandhar at the showroom of the OP No.2. The complainant had purchased one car Cruze LTZ VIN No. MA6JFDHDCCH002145, and bearing Engine No.Z20D1162502K, Colour S. White having manufacturing date 10/2012 and taken delivery on 21.11.2012. Subsequently, the said vehicle was registered with No.PB-08-CJ-0906 with DTO, Jalandhar. By putting up the said vehicle for sale, it was implied on behalf of the OP No.1 and 2 that the said vehicle is free from all kinds of manufacturing defects and has passed through the required tests with regard to its engine, workmanship and that with the regular services and maintenance, the vehicle will give a trouble free comfort to its purchaser i.e. the complainant. Based upon such warranties, the complainant had purchased the said vehicle for consideration, vide bill No.R00419 dated 30.11.2012 and had been getting the required services and maintenance done regularly from its authorized workshop.

2. That during some previous months, however certain problems of the engine of the said vehicle were noticed and it used to create excessive noise and suffer from sudden breakdowns. These defects were brought to the notice of the OP No.2 at his workshop, who inspected the vehicle but had assured that these defects will fade away with the passage of time. As per the assurance of the staff at the workshop of the OP No.2, the complainant continued to use the vehicle for his personal requirements on daily basis. That on 06.08.2014, when the complainant was driving the vehicle at Kapurthala Road, Jalandhar, the car quite suddenly started creating huge noise from its engine and suddenly broke down. It failed to start thereafter. The complainant immediately brought this to the notice of the OP No.2 and the OP No.2 toed away the vehicle to his workshop. After inspection of the car, the technical staff assured the complainant that the defects shall be repaired in a day or two and that the car will be ready for use of the complainant after 3-4 days. The complainant has thereafter repeatedly enquired, called upon the OP No.2 for the delivery of the car but it has been reported by the technical staff and the works manager that the car required extensive repairs, because of certain manufacturing defects in the engine of the car. They have further told the complainant that various technical experts and engineers from Chandigarh and the company headquarters have already inspected the vehicle and have tried to repair the defects but the defects could not be repaired as there is some grave technical manufacturing defect in the engine of the vehicle.

3. Since then the complainant has been virtually facing harassment for no fault on his part as a defective car having manufacturing defects had been supplied to him. Since then the complainant has been facing unbearable humiliation in attending to his day to day business affairs by hiring taxies for smooth carrying on his business. The OPs have not even offered an alternative conveyance to him during the period of repairs being carried upon the car at the workshop of OP No.2 and it has been long prolong period of more than five months since the car is being tried to be repaired.

4. That by supplying a defective car having manufacturing defects to the complainant, the OPs have committed a great deficiency in service and have caused a huge harassment to the complainant. Further by not repairing the car in a reasonable time, the belief of the complainant has been further confirmed that the car supplied to him is not a fit vehicle and that it will create unknown problems in future also as the manufacturing defects have started manifesting themselves with the passage of time. The fact that the higher technical staff as well as the qualified engineers have not been able to repair the vehicle despite their best efforts to the period of more than five months has proved that the car in question suffered from latent manufacturing defects. The complainant has suffered not only huge hardship on account of the defective ride of the vehicle but also financial losses on day to day basis as he has not been able to attend to his business commitments as desired. The complainant has to further incur expenses upon hiring taxies and other conveyances for attending to his business requirements. The OPs are guilty to grave negligence and deficiency in service on account of firstly supplying of a defective car and then not effecting the repairs of the car in a timely manner and as such the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OP may be directed to supply a new car in the value of Rs.12,99,115/-, in lieu of the defective car in question and further change of engine in the car in question and also pay damages for harassment and mental tension to the tune of Rs.2,00,000/-.

5. Notice of the complaint was given to the opposite parties and accordingly, opposite party No.1 filed its separate reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable against the OP No.1 as the OP No.1 and the complainant has no privity of contract. A bare perusal of the whole complaint shows that the main grouse of the complainant is that the OP No.2 i.e. M/s Aakrti World, Jalandhar had not repaired the vehicle of the complainant well within time. In this regard, the OP No.1 has nothing to do with the complaint of the complainant. As the OP No.1 is a manufacturer and there is no fiduciary obligation upon the OP No.1 on behalf of the OP No.2. It is further averred that the complaint of the complainant also deserves to be dismissed on the ground of concealment/misleading on the part of the complainant before this Forum. The complainant throughout his complaint nowhere stated that the damage of the vehicle in question was due to the negligence on the part of the complainant, as the vehicle in question has run through deep water, due to which the vehicle in question had demanded repair and did not start, the copy of the invoice while submitting the vehicle in question is annexed herewith and further alleged that the vehicle is running smoothly for the last two years and the complainant had never raised any issue with regard to the performance of the vehicle in question and as such the question of any manufacturing defect in the vehicle does not arise. On merits, all the averments as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and same may be dismissed. OP No.2 filed its separate reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable at all and further submitted that there is complicated question of law and facts involved, so the matter can not be adjudicated in the summary proceedings and even there is no cause of action whatsoever accrued to the complainant for filing the present complaint. Even the complainant is estopped by his own act and conduct because no body can take advantage of his own wrongs. The true facts are that there is no manufacturing defect whatsoever in the car. It is pertinent to mention here that the car was delivered on 21.11.2012 and thereafter there was no compliant regarding any manufacturing defect. The complainant got the delivery of the car after full satisfaction and enjoyed the benefits of the car since long. Before the present incident, earlier the car came to the answering OP for service on different occasions and there was no complaint whatsoever regarding any manufacturing defect. This time the car came to the answering OP as the complainant dropped the car in water. Water entered into the engine of the car and defects occurred. Even when the car came there was an endorsement made that vehicle has gone through water. This fact was duly suppressed by the complainant at the time of filing the present complaint. Since December, 2014 the car is ready and the answering OP has approached the complainant many times to take delivery of the car after paying necessary charges, but the complainant has not come for taking delivery of the car. Instead of this, the complainant has filed the present complaint just to get the wrong benefits. The answering OP is entitled for Rs.250/- per day as parking charges of the car as the car is lying with the answering OP after repair and the complainant has not taken delivery of the car intentionally. On merits, the purchase of the car from OP No.2 is admitted but the remaining allegations as made in the complaint are vehemently denied and lastly prayed the complaint of the complainant is without merit and same may be dismissed.

6. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit Ex.CA alongwith documents Ex. C1 to Ex.C4 and also tendered into evidence affidavit Ex.CB and affidavit of Surveyor Ex.CC alongwith report Ex.C-5 and Photographs Ex.C6 and Ex.C7 and closed the evidence.

7. Similarly, counsel for OP No.1 tendered into evidence affidavit Ex.OP1/A alongwith documents Ex.OP1/1 to Ex.OP1/11 and closed the evidence. Counsel for the OP No.2 tendered into evidence affidavit Ex.OP2/A alongwith document Ex.OP2/1 and closed the evidence.

8. We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the case file very minutely.

9. In this complaint the main grudge of the complainant is only that he has purchased a Cruze Car from OP No.2, but the same started giving huge noise from its engine and intimation was given to this effect. On 06.08.2014, the engine suddenly broke down and again car was not started and same was brought to the workshop of OP No.2, where from it has come to the notice of the complainant that there is a manufacturing defect in the engine because the said car was got inspected by the OP No.2 from technical expert and engineer from Chandigarh and as such OP No.2 has sold a defective car to the complainant, whereby committed an unfair trade practice, deficiency in service and therefore the complainant is entitled for the replacement of the car as well as compensation and in support of his case, the complainant has brought on the file number of documents i.e. his affidavit Ex.CA and supplementary affidavit Ex.CB and documents Ex.C5 to Ex.C7.

10. On the other hand, the counsel for the OP No.1 submitted a written argument and whereby reasserted the entire factum as detailed in its written statement.

11. Counsel for the OP No.2 took a plea that there is no manufacturing defect in the car rather the defect occurred due to negligence of the complainant himself because the car passed through the water and accordingly water entered into the engine of the car and defect occurred and further submitted that there is no delay on the part of the OP No.2 for repairing the car, as the car was received in the month of August, 2014 and the same was ready for delivery in the month of December but the complainant himself did not come present to get the delivery of the car and as such there is no negligence and deficiency in service on the part of the OP No.2.

12. We have taken into consideration the above factums as narrated by each counsel for the parties and find that the complainant very strongly projected that there is a manufacturing defect in the car. For that purpose, the complainant has not examined any expert witness, who can say that there is a definite some manufacturing defect, moreover, the car was purchased on 21.11.2012 and first time, defect was occurred in the car on 06.08.2014, means after two years and during that period, the complainant never approached to the OP No.1 or OP No.2, that there is any manufacturing defect in the car. No doubt the complainant has examined Surveyor, whose affidavit is available on the file Ex.CC and report of the Surveyor is Ex.C5 and Photographs of the Car is Ex.C6 to Ex.C7, but from the perusal of the report of the said Surveyor, it has become clear that the said Surveyor Didar Singh Ruprai is not a engineer or mechanic rather he is a Surveyor just for assessing the loss of the vehicles and as such, he did not say even iota of word in his report Ex.C5, that there is any manufacturing defect in the car. So, if manufacturing defect is not proved then complainant is not entitled for replacement of the car from OP No.1, whose manufacturing Firm.

13. So for the question of occurring a defect in the car, though as per the version of the OP, the same was accrued due to the reason that the vehicle has gone through water and accordingly, water entered into the engine but to prove that the water entered into the engine, the remedy with the OP No.2, is to examine any expert/mechanic who repair the car but for the best known reason, the OP No.2 has not examined any expert/mechanic, from his workshop. So, the fault of the complainant is not established rather it is established on the file that there is a some mechanical defect occurred in the car though the same is cured by the OP No.2, as per its own version that car is ready for delivery on 14, December. It is pertinent to mention here that the warranty period of the car is 3 years as mentioned in the papers placed on the file by the OP No.1 and admittedly, car was purchased on 21.11.2012 and said defect was occurred on 06.08.2014, means within the warranty period and as such, the OP No.2 is liable to repair the car of the complainant free of cost because the same is within warranty period.

14. Furthermore, as per plea of the complainant that there is a un-necessary delay for repairing of the car, these facts cannot be denied because the papers placed on the file itself speaks that the car of the complainant was brought to the workshop of the OP No.2 on 06.08.2014, though the OP No.2 alleged in the written reply that the car was ready in the month of December, 2014 but if so then, it is the duty of the OP No.2 to send a written notice to the complainant to get delivery of the car but no writting notice was given by the OP No.2 to the complainant itself shows that the car was not ready in the month of December even till the date of filing the complaint i.e. 30.12.2014, no notice for getting delivery of the car was ever delivered by the OP No.2 to the complainant. So, it means there is a un-necessary long delay for repairing the car for which the complainant is entitled for compensation.

15. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OP No.2 is directed to repair the car of the complainant within 15 days from the date of receipt of the copy of order and deliver the same in running condition to the complainant and further directed to pay compensation of Rs.20,000/- for causing a delay in repair. Complaint could not be decided within stipulated time frame due to rush of work.

16. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

14.06.2017 Member President