JUDGMENT Per Jagroop Singh Mahal, Member The aforementioned two appeals are directed against one and the same order dated 26.5.2010 passed by learned District Consumer Forum-II, U.T. Chandigarh whereby complaint bearing No.419 of 2009 filed by M/s Image Communication System was allowed with costs of Rs.5000/- and OPs were directed to pay to the complainant Rs.3,73,161/- after deducting the depreciation @ 20% as the vehicle had been used by the complainant for two years. OPs were also directed to pay a sum of Rs.20,000/- as compensation for mental agony and harassment. Opposite parties were held liable jointly and severally to pay the aforesaid amounts within 60 days from the date of receipt of copy of the order, failing which they were made liable to pay the amount alongwith interest @ 18% p.a. from the date of filing the complaint i.e. 25.3.2009 till its realization. Since both the appeals are against the same order, so we are deciding both these appeals through this common order. 2. In nutshell, the facts as set out in the complaint are that on 30.04.2008 the complainant purchased a Tata Indica VX (DLG) car from Joshi Auto Zone Pvt. Ltd.- OP-1 for Rs.3,73,161/- with a warranty of 18 months irrespective of the distance covered. Just after 5 days of the purchase of the car, it started giving trouble and complainant took the car to the workshop of OP-1 with the complaints that the back door was not locking properly, seat belt was not properly opening, Dicky (boot door) was not responding and there was abnormal noise. At that time the car had not even covered 500 Kms. OP-1 rectified the defects. However, the said defects again occurred and on 22.5.2008 the complainant took the vehicle to the workshop where supervisor and the service manager took more than 7 hours to replace the alternator and power steering motor but even after changing the parts, the same irritating noise again started coming out of the vehicle when it had covered only 2000 Kms. He then wrote email to Mr.Deepak Johsi, M.D. of OP NO.1 mentioning the above said defects and failure on the part of OP-1 to rectify the defects. The complainant also requested for replacement of the car with a new car. On 31.05.2008, the complainant received a bill for the repairs done on 22.05.2008. The complainant kept on lodging the grievances with the company and its agent but they too kept on making one excuse or the other. On 30.09.2008, the complainant again took the car to OP-1 and the power steering oil was changed when the car had run only 12257 kms which is generally changed after 70000 kms. On 03.12.2008, the complainant again took the car to the workshop of OP-1 as it was having the problems from whole of the car including the R/R Steering rack Assy(power steering). On that day, about 10 items including R/R steering rack assy (Power steering) were changed vide invoice dated 03.12.2008 . 3. It was also averred that on 25.12.2008 the car of the complainant met with an accident, so he got it repaired from OP-1 by paying a sum of Rs.4632/-. At the time of third free service as provided by the manufacturer company, OP NO.1 again top up the transmission oil (steering oil) and also replaced certain other parts of the car. The complainant enquired as to why the oil was being top up so early and he was told that there was some problem with the steering as the oil was leaking and it necessitated to fill it up for the smooth drive of the steering. On 17.03.2009, the complainant again visited the workshop of OP-1 with some problems and on that day tension pulley for A/C and A/C idler were changed vide invoice dated 17.03.2009 . The mechanic/engineer of OP-1 told the complainant that some steering part would be changed as mud/dust had touched the lower body of the vehicle and gave an estimate of Rs.20502/- for changing the same. The complainant then took up the matter with OPs and requested to replace the car as it was giving continuous problems since the day of its purchase. On 19.03.2009, the complainant received e-mail asking him to contact Mr.Saket Chatrath of Customer Care. Accordingly the complainant contacted him who assured that the parts would be changed on payment of Rs.8900/- including the labour charges. When the complainant visited the workshop he was given another estimate of Rs.10,162/- for replacement of pump power spring. On 23.03.2009, the complainant again received e-mail from OP-1 mentioning therein that the parts which were required to be changed were not covered under warranty and the complainant would have to pay the price of the above said parts. 4. It was alleged that the complainant had purchased the car by spending Rs.3,73,161/- but the same did not give proper service as it was suffering from manufacturing defect and the OPs failed to remove the same which amounts to deficiency in service on their parts. Hence, complainant filed the complaint seeking the refund of the price of the car besides compensation of Rs.2.00 lacs for mental and physical harassment. 5. Both OPs contested the complaint and filed their separate replies. The OP-1 in its reply inter-alia stated that the vehicle did not have any manufacturing defects as the same was a perfect merchantable automobile without any defects. The vehicle was repaired to the satisfaction of the complainant under the conditions of warranty and the estimates were given for the parts which were not covered under the warranty conditions. It was pleaded that the problem if any had occurred due to normal running and not due to any manufacturing defect in the car. The maintainability of the complaint under the Consumer Protection Act was also questioned. 6. In its separate written reply, the OP-2 took almost identical pleas as were taken by OP-1. It was pleaded that the complainant had taken the delivery of the car after pre-delivery inspection to his entire satisfaction. The warranty of the vehicle was subject to certain terms and conditions and the violation thereof would result in forfeiture of the warranty terms. The complainant used the vehicle in a negligent manner and hence, the complainant was not entitled to any benefit under the terms and conditions of the warranty. The car in question was not suffering from any manufacturing defect and there was no deficiency in service on its part. 7. After going through the evidence and hearing counsel for the parties, learned District Forum allowed the complaint as indicated above. Aggrieved against the said order, both opposite parties have come up in their respective appeals. 8. We have heard learned counsel for the parties and carefully gone through the file. 9. The learned counsel for the complainant/appellant has argued that the compensation of Rs.20,000/- awarded to the complainant is very meager as compared to the harassment caused to him by OPs by selling a defective vehicle. His contention is that due to manufacturing defect in the vehicle he had to make a number of rounds to the workshop of OPs for getting the defects removed but even then same has not been removed and therefore higher compensation should be allowed. Against this, learned counsel for OP/respondent No.1 has argued that there is no manufacturing defect in the vehicle . As and when any defect was brought to the notice of OPs, it was immediately removed and therefore order passed by the learned District Forum cannot sustain. 10. It is true that the complainant visited the workshop of OP No.1 when an alternator assembly and R/R alternator assembly were changed. Thereafter, on 30.9.2008, 3.12.2008, 4.1.2009 and 17.3.2009 certain other parts of the vehicle were replaced. The complainant has not been able to prove as to what manufacturing defect the vehicle is now suffering from. Needless to mention that the onus was on the complainant to prove the existence of manufacturing defect which cannot be presumed simply because the complainant had made 4-5 visits to the workshop for repair of the parts. Otherwise also, in case any part is defective, the OPs can be directed to replace that part alone unless even after the replacement of that part the defect cannot be rectified. It is not so in the preset case. The OPs have always been attending to the problem narrated to them by the complainant and the defective parts were being replaced. In the absence of any expert opinion, especially when no other defect appears to have been existing in the vehicle, the entire vehicle cannot be ordered to be returned to the OPs. 11. It is also admitted by the complainant in para-8 of the complaint and affidavit that the car had met with an accident. The learned counsel for OPs/appellants argued that the accident would have an adverse effect not only on the part which was involved in the accident but on the entire vehicle due to which certain problems may have subsequently arisen but those no longer would be in the warranty. 12. The learned counsel for complainant/respondent argued that the vehicle was purchased on 30.4.2008 but he had to visit the workshop on 5th, 17th and 22nd May,2008 for rectification of the defects. He, however, did not produce any gate pass/ job card to support his contention alleging that the same were not issued by the OP NO.1. He referred to email, copy of which is annexure C-2 in this respect. We, however, cannot accept this version that if the complainant had visited the premises of OP No.1, job card or gate pass was not issued, especially when subsequently they had been issued by the same workshop, copies of which are Annexure C-3 to C-7. 13. In the present case, admittedly there were certain defects in the vehicle for which the complainant visited the premises of OP NO.1 five times. The defective parts were replaced by the OPs. The learned District Forum has granted a compensation of Rs.20,000/- for harassment alongwith an order that the defective car should be taken back and the amount paid by the complainant should be refunded to him. We are of the opinion that instead of refunding the amount, the compensation amount should be enhanced to Rs.50,000/-. In view of the above discussion, we are of the opinion that the appeals filed by both the parties should be partly allowed and the impugned order should be modified to the effect that the OPs No.1 & 2 shall jointly and severally pay a sum of Rs.50,000/- to the complainant as compensation alongwith the litigation costs as awarded by the learned District Forum. The direction issued by the learned District Forum to the OPs to pay Rs.3,73,161/- minus 20% is set aside. If the amount of compensation and costs awarded by the learned District Forum are not paid within 30 days from the date of receipt of copy of this order, the OPs would be liable to pay the same alongwith interest @12% p.a. since the filing of the complaint i.e. 25.3.2009 till the amount is actually paid.
| | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MRS. NEENA SANDHU, PRESIDING MEMBER | , | |
