Chandigarh

DF-II

CC/337/2023

NEELAM W/O CHARANJIT SINGH - Complainant(s)

Versus

HARBIR AUTOMOBILE PVT. LTD. THROUGH ITS DIRECTOR - Opp.Party(s)

DEEPAK AGGARWAL

29 Oct 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II, U.T. CHANDIGARH

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Neelam w/o Charanjit Singh, resident of House No.2299-A, Sector 27-C, Chandigarh.

             … … … Complainant

Versus

1.  Harbir Automobile Pvt. Ltd., Plot No.182/84, Ind. Area, Phase-I, Chandigarh, through its Directors.

2.  Raj Vehicles, Mohali, Authorized Dealer, Mahindra & Mahindra Ltd., E-2, Ind. Area Ph-2, Sector 57-A, SAS Nagar (Pb.) through its Directors, Email ID:     2^nd address:

    Raj Vehicle, Chandigarh, Authorized Dealer Mahindra & Mahindra Limited, Plot No.34, Industrial Area, Phase-1, Chandigarh, E-mail: gmrajchd@gmail Mobile No.9646624180.

3.  Rajwinder Singh, Director of Raj Vehicles Mohali, Authorized Dealer, Mahindra & Mahindra Ltd., E-2, Ind. Area Ph-2, Sector 57-A, SAS Nagar (Pb.),

    Email ID: 4.  Jaskaran Singh, Director of Raj Vehicles Mohali, Authorized Dealer, Mahindra & Mahindra Ltd., E-2, Ind. Area Ph-2, Sector 57-A, SAS Nagar (Pb.)

    Email ID:  

5.  Mahindra & Mahindra Limited, Gateway Building, Apollo Bunder, Mumbai 100 001, India, through its MD/Director.    

    E-mail ID  

6.  Dr.Amish Shah, Managing Director of Mahindra & Mahindra Limited, Gateway Building, Apollo Bunder, Mumbai 100 001, India, through its MD/Director.       

    E-mail ID    … … … Opposite Parties

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.BRIJ MOHAN SHARMA,     MEMBER

Argued by:    Sh.Deepak Aggarwal, Counsel for Complainant.

Sh.Gaurav Bhardwaj, Counsel for OP No.1.

OP No.2,3,4 & 6 ex-parte.

Ms.Sapna Khurana, Counsel for OP No.5 (through VC)

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1]       The complainant has filed the present complaint pleading that she purchased Mahindra TUV300 Car, Colour PRL White bearing Chassis No.MA1NA2VZEJ6B42569 Engine No.VZJ6B18870, from OP No.1 on 07.01.2018 by paying an amount of Rs.11,06,220/- after availing loan facility from State Bank of India. It is stated that on the very next day i.e. 08.01.2018, complainant noticed that there is starting trouble as vehicle very often stops and did not start thereafter even by self-start or key. The said problem was immediately reported to the OPs but instead of rectifying the same, they advised the complainant that she should run the vehicle continuously for 200 to 300 kms. in one go in one week and by doing so the problems will disappear. It is stated that complainant was facing the starting problem from day one of the purchase of the vehicle and took the same to the workshop of OP No.2, but OP No.2 did not open any job card or recorded the problems. First time job card was opened by OP No.2 on 06.06.2018 and certain problems viz. both front side door glass up and down time noise; some time vehicle not start, rear RHS door closed to hard, washing and cleaning, glow box light not working, were reported by the complainant. It is stated that despite of repairs carried out by OP No.2, the defects in the vehicle could not be rectified. Thereafter, the complainant took her vehicle to the showroom of OPs many times and reported various problems/defects in the vehicle, such as starting trouble with self-start and key, engine vibration & noise, music system hanging, reverse camera not working, vibration of vehicle at the time of starting, leakage from rear LHS shocker etc., but OPs failed to rectify the same. In February 2023, OP No.1 changed the part of vehicle costing Rs.56,074/- in order to rectify the defect but despite that the vehicle is not roadworthy. It is stated that vehicle in question is not at all reliable as it suddenly stopped on the road.

    It is stated that from day one, the vehicle in question is suffering from inherent manufacturing defects and complainant could not use it properly even for a single day. It is stated that vehicle is still lying at the showroom of OP No.1, but OPs failed to remove the defects in the vehicle. In this manner, the aforesaid acts of the OPs amounts to deficiency in service and unfair trade practice. Hence, the present consumer complaint has been filed with a prayer to direct the OPs to replace the vehicle in question with a new one of the same model & make Or to refund total sum of Rs.11,06,220/- i.e. the amount paid by complainant for purchase of vehicle in question and to pay compensation for mental agony & harassment as well as litigation cost.

2]       OP No.1 in its written version stated that they sold the vehicle to the complainant being authorized dealer of OP No.5. It is stated that all the services and repairs have been done by OP No.2 only and the complainant came for repair only in the year 2023 to OP No.1 and the vehicle has been repaired twice and heavy discount as goodwill gesture was also given to complainant despite her vehicle out of warranty. It is stated that complainant has failed to place on record any expert opinion with regard to manufacturing defect. It is stated that complainant has filed the present complaint for undue enrichment and seeking refund after using the vehicle for more than 45000 kms. Pleading that there is no   deficiency in service or unfair trade practice  on  their part, the OP No.1 has prayed for dismissal  of the complaint.

3]      OP No.2 did not turn up despite service of notice, hence, OP No.2 was proceeded ex-parte vide order dated 16.10.2023.

4]       OP No.3 & 4 did not turn up despite service of notice, hence, OP No.3 & 4 were proceeded ex-parte vide order dated 30.08.2023.

5]       OP No.5 in its written version, inter alia, took preliminary objections of limitation, cause of action etc. It is alleged that in fact there is no privity of contract between the OP No.5 and the complainant. On merits, it is stated that OP No.5 is only the manufacturer of vehicle and do not take part in sale or service of the vehicle that is entirely the prerogative of the authorized dealership, manufacturer plays no role. The liability of the manufacturer is limited to the terms and conditions of the warranty policy. It is stated that most of the time vehicle had gone for washing & cleaning. It is stated that on 13.06.2019 vehicle had gone for accidental repair and starting trouble first time has been recorded on 18.11.2022 after almost 4 years & 10 months of purchase of vehicle, thus, the defect reported after more than 4 years & 10 months cannot be considered to be manufacturing defect. It is averred that the consumer complaint of the complainant is nothing but abuse of process of law; therefore, it is liable to be dismissed.

6]       OP No.6 did not turn up despite service of notice, hence, OP No.6 was proceeded ex-parte vide order dated 30.08.2023

7]      Separate replications in respect of written versions of OP No.1 & OP No.5 have also been filed by the complainant controverting the assertions of OP No.1 & OP No.5 as made in their written versions.

8]       Complainant and OP No.1 placed on record their respective evidence by way of affidavit in support of their contention, whereas OP No.5 did not file evidence by way of affidavit in support of its contention.

9]       We have heard the learned counsels for the parties and have gone through entire documents on record.

10]     Per pleadings, purchase of the vehicle Mahindra TUV300 Car Colour PRL White against the consideration of Rs.11,06,220/- is not in dispute.  It is also the case, starting trouble which started after the purchase of vehicle, was brought to the notice of the OPs and vehicle has been taken for repairs time and again with the service centre of OP No.1 & 2. As per the reply filed by OP No.1, they have admitted to the extent that the vehicle in question was brought for repairs and that has accordingly been done. OP No.2,3,4 & 6 did not appear to contest the claim of the complainant and preferred to be proceeded ex-parte. This act of the OP No.2,3,4 & 6 draws an adverse inference against them. The non appearance of the OP No.2,3,4 & 6 shows that they have nothing to say in its defence against the allegations made by the complainant. Therefore, the assertions of the complainant go unrebutted and uncontroverted. The OP No.5 has stated that vehicle had gone for wear and tear problems and most of the time vehicle had gone for washing and cleaning and starting trouble has been recorded first time on 18.11.2022. 

11]      From the history sheets/job card, which have been placed on record as Annexure C-4 (colly) & Annexure C-6, it transpires that the complainant visited the service centre of OP No.1 & 2 time and again with numerous complaints including starting trouble with self-start and key, engine vibration & noise, music system hanging, reverse camera not working, vibration of vehicle at the time of starting, leakage from rear LHS shocker etc. and the defect has not been rectified for the reasons best known to the OPs. Copies of history sheets/job card placed on record are ample evidence of proof that the vehicle did have defects and the complainant was put to lot of hardship on account of that. Hence, is clear that the vehicle had gone to the service centre of OPs on several occasions for repairs as there has been continuous problem in the vehicle, which could not be corrected despite repair/replacement of part etc. In our view, there is no necessity for a new car to go to work shop on several occasions for repairs within a short span of its purchase.   

12]      As per the definition given in ‘The Consumer Protection Act, 2019’, the ‘defect’ has been defined as under:-

 “2(10)"defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or product and the expression "defective" shall be construed accordingly.

13]      In view of the definition, reproduced above, the OPs have under bounden duty to supply defect free car/vehicle to the customer. The consumer/complainant had spent huge amount on the purchase of the new vehicle in question to have a hassle free ride of the vehicle for good number of years but it proved otherwise. The ‘defect’ in the car in question, which is not repairable at the service center/dealer’s end, is certainly an inherent manufacturing defect for which the customer is not to be blamed. 

14]      Reliance has been placed on the order of Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in case ‘Maruti Suzuki India Ltd. vs. Dr.Koneru Satya Kishre & Ors, R.P. No.3798 of 2007 in Appeal No.1568 of 2006, decided on 16.11.2017 – 2018(1) C.P.J. 157, wherein it has been held that:-

“Defect in vehicle – Kinds of – Held, a ‘defect’ in a vehicle may come under the category of ‘manufacturing defect’ or otherwise, a vehicle is said to be suffering from ‘defect’, if there is any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard, which was required to be maintained under any law in force. 

15]      It has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in case ‘M/s Controls & Switchgear Company Ltd. vs M/s Daimlerchrysler India Pvt. Ltd.’ decided on 17 September, 2007 that “if the car is defective, may be, on one or other count but that would not give any satisfaction to the consumer who has spent large amount for its purchase. Non-replacement of the vehicle in these set of circumstances, would tantamount to unfair trade practice”.

16]      It has been held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case ‘M/s Hyundai Motors India Limited vs. M/s Affiliated East West Press (Pvt.) Limited’ I (2008) CPJ 19(NC) that “if a brand new car gives trouble within a few days of its purchase, the consumer would be dissatisfied. Further, in such cases, the manufacturing Company is not justified in protracting litigation, merely because it has the money power. It has been further held that a person who purchases a vehicle, maybe a luxury car or a small car, would not be satisfied, if it is a defective vehicle. That the defect may not be a major one but the consumer loses satisfaction of having a new car. That loss of satisfaction would be much more in a case when the person buys the vehicle with his hard-earned money”.  

17]     In case of ‘NACHIKET P SHIRGAONKAR Vs PANDIT AUTOMOTIVE LTD’ Revision Petition No.3519 of 2006 decided on 25.02.2008, it has been held by the Hon’ble National Consumer Disputes Redressal Commission that ‘Principle of res ipsa loquitur applicable to the vehicle having manufacturing defects. There is no need to refer the vehicle to a third party for giving an opinion”.

18]      The learned counsel for complainant has relied upon the judgement of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in case ‘Bajaj Auto Ltd. & Anr. vs Bharatbhai Ishwarbhai Rajput’ decided on 14.02.2011 wherein it has been held that ‘when the vehicle is taken to the showroom numerous times, the deficiency is established’. He has also relied upon judgement of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in case ‘Mahindra and Mahindra Ltd. vs. Chandan Mondal’ decided on 19.09.2013 wherein it has been held that ‘job cards are sufficient evidence to prove manufacturing defects. It is futile to go into minute technicalities to establish said defects are manufacturing or not’.   

19]      From the above discussion & findings, it is established that the OPs have supplied a defective car to the complainant and as such, remained defaulter by not redressing grievance of the complainant by either repairing the car or refund the price of it to the complainant. 

20]      Taking into consideration the above facts & circumstances of the case as well as observations and law on the matter, it is held that the OP No.1 & 5 have sold a defective car to the complainant. Hence, the present complaint of the complainant stands partly allowed against the OP No.1 & 5. The OP No.1 & 5 are directed to refund the entire invoice price of the car in question i.e. Rs.11,06,220/- to the complainant alongwith interest @ 10% p.a. from the date of its purchase i.e. 07.01.2018 till the date of its actual realization within a period of 45 days from the date of receipt of certified copy of this order failing which they shall be liable to pay interest @ 12% p.a. instead of 10% p.a. of the above mentioned amount alongwith lump sum compensation of Rs.50,000/- to the complainant. 

21]      The present complaint stands dismissed against OP No.2,3,4 & 6.

22]      It is made clear the complainant shall hand over the car in question to OP No.1 & 5 on receipt of above awarded amount, against proper receipt, and shall also sign all necessary documents required by OP No.1 & 5 in respect of the said car for getting its ownership transfer etc.

23]      Pending application(s) if any, stands disposed of accordingly.

        The Office is directed to send certified copy of this order to the parties, free of cost, as per rules & law under The Consumer Protection Rules 2020 & Act 2019 respectively. After compliance file be consigned to record room.

Announced

29.10.2024                                                      

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

Sd/-

 (BRIJ MOHAN SHARMA)

MEMBER

as