Delhi

North East

CC/209/2016

SARFRAJ - Complainant(s)

Versus

HARPREET FORD - Opp.Party(s)

29 Mar 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 209/16

 

In the matter of:

 

	Shri Sarfraj S/o Shri Tahajeebul Hasan R/o-1/2666, Ram Nagar Delhi-110032	Complainant
	Versus
1       2	M/s Harpreet Ford Motors G-6, Dilshad Garden, Metro Station New Delhi-110095   Ford India Pvt. Ltd. 5th  Floor, Plot No. 142,Chimes 142 Sector 44 Road, Sector 44, Gurugram-122003 (Haryana)	Opposite Parties

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION      :

11.08.2016 29.03.2019 29.03.2019

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

 

ORDER

1. Succinctly put, the facts giving rise to the present complaint as culled out from the complaint are that the complainant had purchased a Ford Figo Aspire (white colour / saloon) car bearing Chassis No. MAJZXXMTKJFU30861, Engine No. FU30861 bearing registration no DL-1RTA-3815 manufactured by OP2 from OP1 vide Booking Proforma Invoice No. 767 dated 17.01.2016 for a sum of Rs. 6,08,990/-. The said car was delivered to complainant by OP1 on 21.02.2016 vide Delivery Receipt attached by complainant with the complaint. However, the subject vehicle gave problem on regular basis since date of purchase and OPs failed to address the same despite complainant visiting and intimating the OPs several times and OPs officials having inspected the vehicle through their engineers but all were futile since the vehicle was suffering from manufacturing defect which could not be repaired. The complainant had to face monetary loss in income since the said car was purchased as Taxi to earn livelihood by way of self employment but was stranded in the garage of the complainant as completely non functional. Therefore, the complainant alleged manufacturing defect, poor after sales service, deficiency of service by OPs, mental agony caused due to having been sold a defective vehicle and filed the present complaint praying for issuance of direction against OPs to refund the cost of the vehicle i.e.  Rs. 6,08,990/- alongwith compensation of Rs. 5,00,000/- towards gross negligence and deficiency of service on the part of OPs and Rs. 15,000/- as cost of litigation.

The complainant has attached copy of proforma invoice dated 17.01.2016 issued by OP2 for the said vehicle, copy of delivery receipt dated 21.02.2016 issued by OP2, copy of RC and copy of DL alongwith copies of Repair Order Billing for the period of April 2016 to July 2016 mentioning sale date of vehicle as 26.02.2016 and vehicle having run more than 23,000 Kms by 01.07.2016 and “CNG fitted” in vehicle endorsement on repair orders issued by OP2.

2. Notice was issued to OPs on 22.08.2016. Both OPs entered appearance on 26.09.2016 and filed respecting written statement on 24.10.2016.
3. OP1 in the written statement took the preliminary objection of complaint being misconceived, false, frivolous, afterthought, vexatious and fraught with false and defamatory allegations against OP1 to harass and humiliate and malign OP1 without any cause of action. OP1 resisted the present complaint by submitting that the complainant had concealed the material facts that he had got installed CNG kit from an unauthorized local market outside and thus made structural changes in the Engine of the car including changes in its electrical and wiring harness and the entire wiring system which was diagnosed as the reason for problems in the vehicle as per the engineer of OP1 and not related to any manufacturing defect in the car. Therefore, by the fitment of unauthorized CNG kit from local market, the complainant had flouted the warranty clause laid down by the manufacturer i.e. OP2 in the Warranty Booklet provided to the each owner of the vehicle which clearly stipulates that any structural changes carried out from any unauthorized place will entail cancellation of warranty.  OP1 further contended that the complainant is trying to take advantage of his own doing wrong since the problem in the vehicle is his self creation in as much as he has got tampered with his vehicle from outside market / local place and cannot blame OP1 for any consequence thereof OP1 denied allegation of any manufacturing defect in the subject car and stated that numerous similar models are plying on the roads trouble free and complainant has become a victim of his own act of getting CNG kit installed to cut down fuel cost by making structural changes in the car OP1 urged that it is an authorized sale / service outlet and is not supposed to keeps stock of local CNG kit nor is a place for CNG kit installation. Lastly, OP1 contended that complainant is not a consumer having purchased the said vehicle for commercial purpose and denied any unfair trade practice or deficiency of service on its parts and prayed for dismissal of the complaint.
4. The complaint was opposed by OP2 by taking the preliminary objection that the complainant had deliberately concealed the fact of CNG kit installation having got done by him in the said vehicle from some unauthorized vendor which straight away negates the warranty policy as the tampering of well synchronies mechanical as well as electrical component meant only to run on petrol  could change the vehicle dynamics of mechanical component or electrical component which could further lead to some problem with the component which are to otherwise effectively run on petrol variant model as in the present case. OP2 submitted that the subject vehicle is a petrol variant model and complainant got non approved CNG kit fitted therein OP2 further urged that complainant had failed to substantiate his contention of manufacturing defect in the vehicle by any cogent evidence on record since the onus to prove the same lies on him and this in itself is a ground of rejection of complaint. OP2 contended that complainant has failed to prove any deficiency of service under Section 2 (1)(g) of Consumer Protection Act on the part of OP2 conclusively since the subject vehicle was a petrol variant and was defect free at the time of sale. OP2 took the defence of malfunctioning of the AC in the subject car being due to tampering of well synchronized mechanical and electrical system of vehicle got done by the complainant from an untrained outside agency which caused the warranty to be invalid but the OP2 still got the AC repaired as a good will gesture. OP2 questioned any privity of contract with the complainant for any grievance of deficiency of service or unfair trade practice on the ground that relationship between OP1 & OP2 is on principal to principal basis where OP2 being a manufacturer sells the vehicles to its authorized dealer who then in turn sells the car to public at large based on their own independent marketing strategies and both have distinctive role to play without assuming any liability for each other except in case of any manufacturing defect for which OP2 is liable and for after sale services, OP1 is responsible for its customers. OP2 submitted that on repair of AC of the car, the complainant was offered a joint road test with dealership personnel to satisfy himself of proper functioning and the car was handed over to him to his complete satisfaction. OP2 denied the vehicle suffering from any manufacturing defect and cited CNG kit installation in a petrol variant car as the root caused for problem arising in the said vehicle which was wrong doing of complainant himself for which he cannot seek benefit since despite such unauthorized installation, the mechanics of OP1 addressed all problems in the vehicle in best possible manner. OP2 relied upon the Terms and Conditions of the New Vehicle Warranty which unequivocally stipulate that the warranty does not cover any damage or mechanical failure attributed to vehicle being fitted with an LPG or alternative fuel unit other than unit supply and body modification / construction not approved by Ford. OP2 blamed the complainant for having CNG kit installed in a petrol variant car and modifying it in contravention of Terms of Warranty and then alleging manufacturing defect to cover his own misconduct. OP2 placed on record copy of New Vehicle Warranty and service guide booklet in support of its defence of invalid warranty in the event of unauthorized modification or mechanical failure owing to vehicle being fitted with an LPG or alternative fuel unit. Lastly, OP2 defended himself by taking the plea that it extended required services to the complainant and resolved all issues in accordance with Terms of Warranty. To corroborate the same, OP2 placed on record copy of Vehicle Repair History of the subject car from 14.03.2016 till 22.08.2016 with Km run of 33,257 kms in support of free services and repairs carried out by OPs on the subject vehicle with endorsements “CNG Fitted Vehicle”.
5. Rejoinders to the written statements of OPs were filed by the complainant in denial / rebuttal of defence taken by OPs wherein complainant reiterated and reaffirmed the allegations / grievance against OPs made out in the complaint.
6. Evidence by way of affidavit was filed by the complainant exhibiting copy of proforma Invoice towards purchase of said car.
7. Evidence by way of affidavit was filed by the OP1 sworn by its Executive Director, reinforcing its defence taken in the written statement and exhibiting copy of repairs orders and DW / A-1 to DW / A-5.
8. OP2 did not appear after filing written statement on 24.10.2016 and was therefore proceeded against ex-parte vide order dated 28.03.2018.
9. Written arguments were filed by the complainant wherein in addition to the grievance agitated in the complaint, he submitted additionally that the invoice dated 17.01.2016 issued by OP1  clearly shows that the vehicle which had been given to him by OPs is CNG with Petrol against Fuel Type and the insurance cover also reflects CNG / LPG kit installation. Complainant submitted that the vehicle service report card issued by OP1 is dated 14.02.2016 wherein the next service was advised after 10,000 Kms with due date 25.02.2016 but the vehicle was delivered to complainant on 21.02.2016 and permit issued on 01.03.2016.
10.  Written submissions were filed by OP1 as a counter to the complainant’s reliance on proforma invoice of CNG vehicle whereby OP1 argued that there is a vast difference between a proforma invoice and a cash invoice, the latter not having been filed by the complainant. The proforma invoice is issued to any person on demand who wants to ascertain tentative cost of product possibly / probably for bank loan etc., and is not a cash receipt and the complainant by producing the proforma invoice is misleading the Forum to believe that he paid for CNG kit installation to OP1 which is not true. OP1 placed on record the complete bank statement / ledger account of the complainant with regard to the subject vehicle from bearing entries from 11.01.2016 to 31.03.2016 showing that complainant had not paid anything for installation of CNG kit to OP1. OP1 relied upon the job cards duly exhibited by it in its evidence wherein it had repeatedly informed the complainant of unauthorized installation of CNG kit.
11. OP2 appeared on before Forum 12.10.2018 and prayed for time to address oral arguments on which date counsel for OP1 was also physically disposed and therefore the matter was adjourned to 22.01.2019 on which date the Forum directed both the OPs to place on record vehicle history report under proper affidavit of competent authority on the next date of hearing i.e. 01.02.2019.
12.  As per written argument of OP2, the vehicle history report showed that the subject vehicle was brought for first service on 14.03.2016 at 2,342 kms and last recorded on 22.08.2016 at 33,257 kms. The subject vehicle has already covered 69,953 kms as on 20.07.2017 when it was last brought for servicing and urged that the mileage of the car itself is sufficient to substantiate the fact that there was no manufacturing defect in the said car; the complainant by getting CNG kit installed from a third party unauthorized vendor vitiated the warranty terms and conditions of the vehicle which fitment can be clearly seen in the vehicle RC and repair invoice. The OP2 further argued that the vehicle repair history report showed several accidental repairs which also brings to end of the warranty as per clause A (4) of New Vehicle Warranty Policy. OP1 filed vehicle history report from 14.03.2016 up till 20.07.2017 when the vehicle had run from 2343 kms up till 69,953 kms with detailed service rendered on each repair order, number of visits being 19 between March 2016 to July 2016. OP1 also placed on record Google information of a proforma invoice which is an abridged or estimated invoice sent by seller to a buyer in advance of a shipment or delivery of goods and are commonly used for quotation purposes and differ from a normal invoice.
13.  We have heard the rival contentions of all parties by way of arguments advanced before us, given a thoughtful consideration to the same and have carefully examined the entire material on record placed by each one of the parties before us. A specific query was put to the complainant as to when and where did he get the CNG kit installed in the subject vehicle the complainant gave a vague reply of OP1 having some establishment at East of Kailash, New Delhi where he got the CNG fitted February 2016 from OP1. However, he failed to produce any bill or details / name of the outlet or any mechanic who had installed the said CNG kit. He was further questioned for not having filed a proper cash retail invoice / bill towards purchase of the said car to which he feigned ignorance & relied upon Proforma Invoice. Regarding the status of loan repayment of the said car to Shri Ram General Insurance with which subject vehicle is hypothecated, the complainant submitted that the loan is still outstanding / unpaid and the financer is harassing him for payment of EMIs.
14.  The key issue for consideration in the present case is whether the subject vehicle in question suffered from any manufacturing defect or not which may entitle   / disentitle complainant of relief if any as the case may be. 
15.  Defect is defined in clause 2(1)(f) of CPA and the onus to prove manufacturing defect in a vehicle is on the consumer alleging it and same should be proved by expert evidence, in absence of which no liability could be attributed to manufacturer to compensate the consumer. The Hon'ble National Commission in Swaraj Mazda Ltd. Vs P.K. Chakkrappore 2004 (I) CPC  421 (NC) was also of the view that expert opinion should be obtained from government organization, institution / agency  for going in to technical issue and submission of report that effect. The Hon'ble National Commission in Lovely Autos Vs. Harmesh Lal (2007) I CPJ 312 (NC) held that no manufacturing defect warranted replacement of vehicle or refund of its price on failure of complainant to establish defect in the engine as alleged. The Hon'ble National Commission in Chandeshwar  Kumar Vs Chairman TELCO Ltd. (2006) 3 CPR 402 (NC) dismissed the complaint where no expert opinion was placed on record as to whether vehicle had any manufacturing defect and no additional material or evidence brought on record to prove allegation of vehicle having any manufacturing defect. Similar view was taken by Hon’ble NCDRC in TATA Engineering and Locomotive Company Vs. Sunil Bhasin (2008) II CPJ 111 (NC) where neither the car  was sent to any workshop nor any independent expert opinion obtained about alleged defects. Further the Hon'ble National Commission in Pawan Kumar Vs Nissan Motors India Pvt Ltd. I (2018) CPJ 425 (NC) observed that the complaint was sketchy and vague and no application was given by the petitioner / complainant to support his contention that the said vehicle had manufacturing defect and had also failed to place on record any expert opinion regarding the alleged manufacturing defect in his vehicle and had therefore dismissed the Revision Petition vide which the complainant had challenged the order of State Commission Jharkhand dismissing the complaint.  The Hon'ble National Commission in Sanjay Singh Vs Dabloo Bhagat II (2018) CPJ 533 (NC) observed in a case where manufacturing defect in a vehicle was alleged that the complainant having failed to place on record any technical expert report to support his allegation of defective tractor or any inspection report from a mechanic to whom he had allegedly shown the said tractor and who had given the report of its engine been old and defective, that in failure to do so the complainant has failed to prove to his case of allegation of defect in the said vehicle and upheld the order of State Commission Bihar disallowing relief granted to the complainant by District Forum. In the present case, the complainant has never during the pendency of proceedings since August 2016 moved any application seeking mechanical inspection of the subject vehicle by a technical expert to determine manufacturing defect if any said vehicle beyond reasonable doubt which is also a legal / procedural requirement mandated under Section 13 1 (c) of CPA.
16.  OP1 placed on record judgments of Hon'ble National Commission in Moti Lal & Anr. Vs TATA Engineering Locomotive Co. Ltd and Ors III (2016) CPJ 578 (NC) and Kanchanamani Devi (dead) thr. LRS and Ors Vs TATA Motor Ltd. IV (2017) CPJ 614 (NC) whereby Hon'ble National Commission had dismissed the complainants alleging manufacturing defect in the vehicle in cases where unauthorized modification and additions / alterations were made in the vehicles causing damage to its components viz chassis crack on the basis of affidavit of a technical expert and the complainant having failed to produced his best evidence to counter the same. The Hon'ble National Commission in Mahender Kumar Vs Hero Honda Motor Ltd. I (2017) CPJ 333 (NC) held in a case where manufacturing defect alleged in a vehicle of battery getting discharged and having been replaced twice, on the basis of one of the job cards where it was recorded that the complainant had got the outside mediator buzzer installed on the motor cycle and was advised to remove the same since the drainage of battery was because of faulty wiring of mediator buzzer  that, in absence of no expert evidence on record placed by complainant to indicate that motor cycle was having some manufacturing defect leading to battery drain out and for installation of mediator buzzer, the complainant has failed to establish any manufacturing defect therein and therefore dismissed the revision Petition against Haryana SCDRC order which has set aside the order of District Forum allowing the complaint.
17.  Having exhaustively dealt with the issue in hand in the light of legal discourse / settled proposition of law in the judgment aforecited, we have arrived at a two-fold conclusion:

1.  The complainant failed to proof any manufacturing defect in the vehicle in question as the complaint is vague, allegation therein unsubstantiated / uncorroborated and not supported by any report of a technical expert for which no application or permission was sought by the complainant under section 13 (1)(c) of CPA.  The subject vehicle has run 70,000 kms (approx) from February 2016 to July 2017 when it was last brought for servicing as can be corroborated / seen from vehicle history report file by both OPs. The Hon'ble National Commission in P.C Sunil (Dr.) Vs. TATA Engineering & Locomotive Co. Ltd. III (2016) CPJ 236 (NC) held in a case where vehicle had run 1,00,000 kms that no serious defect, much less any manufacturing defect therein and only in case of manufacturing defect can the vehicle be replaced or its sale consideration be refunded. Similar view was taken in TATA Motor Vs Sharad IV (2016) CPJ 145 (NC) where the vehicle had run 90,000 kms though has visited the workshop several times for repairs that no case is made out for replacement as no manufacturing defect is found in the vehicle. The Hon'ble National Commission in Baljeet Kaur Vs. Divine Motors III (2017) CPJ 599 (NC) held that where manufacturing defect is alleged, onus of proof has to be on complainant and in absence of expert opinion ,mere affidavit is no substitute for same and dismissed the Revision Petition. Therefore this issue is decided against the complainant in light of the settled law discussed above.
2. The complainant did not place on record the retail invoice cash memo of the purchase of the subject car and was rather evasive in giving details of the particulars regarding CNG installation and the onus shifted on him to prove that the said CNG Kit was installed by OP1 in the event of strong denial by OP1 of having installed the same in vehement opposition to the reliance placed by the complainant on the proforma invoice questioning authenticity / validity of the same. Further both OPs during the course of arguments and judgments placed on record have established that the complainant had got done unauthorized modification in the subject vehicle by getting CNG kit installed in the said car not only adversely affecting its internal machinery  and performance but also vitiating the warranty terms and conditions and the onus again shifted on the complainant to rebut the same by leading mechanical inspection for a technical expert report to negate the defence taken by the OPs. The judgments of Hon’ble National Commission relied upon by the OP1 have also settled the law of manufacturer and dealer not being liable for malfunctioning of vehicle or allegations of manufacturing defects therein in the event of unauthorized alteration / modification in the vehicle got done by the owner. Therefore this issue is also decided against the complainant.

18.  After having exhaustively discussed the legal proposition in the foregoing paras and after examining all the evidence placed on record, we do not find any merit to allow the present complaint and dismiss the same with no order as to costs as no deficiency of service or manufacturing defect is made out by the complainant against the OPs in the present complaint.
19.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
20.   File be consigned to record room.
21.   Announced on 29.03.2019

(N.K. Sharma)      President

(Sonica Mehrotra)  Member