Haryana

Kurukshetra

CC/414/2020

M/s Sainsons Paper Industries - Complainant(s)

Versus

Lexus india Ltd - Opp.Party(s)

R.K. Singhal

30 Nov 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL COMMISSION KURUKSHETRA.

 

Complaint Case No.414 of 2020

Date of instt: 23.11.2020.

                                                                     Date of Decision:30.11.2021.

 

 

M/s  Sainsons Paper Industries Pvt.Limited (a company duly registered under the Companies Act having its registered office at Plot No.5, Village Bakhli, Pehowa, District Kurukshetra) through its authorized signatory Rajinder Kumar Chopra.                                                                      

                                                      ……..Complainant.

                        Vs.

 

1.Lexus India Limited through its Managing Director 22 Janpath Road, Windsor Place, New Delhi.

 

2.M/s  FM PEE Motors Limited through its Managing Director 71, Industrial Area Phase-1, Panchkula – 134109 (Haryana).

..………Opposite parties.

 

                  Complaint under section 35 of Consumer Protection Act. 

 

Before       Smt.   Mrs.Neelam Kashyap, President.

                Ms. Neelam, Member.

                Sh.Issam Singh Sagwal….Member.

 

 

Present:     Shri R.K.Singhal, Adv. for complainant.

Sh. Rajender Juneja Advocate for the OP No.1.

Sh.MohitTayal Advocate for the OP No.2.

           

ORDER     

 

                   This is a complaint under Section 35 of the Consumer Protection Act, 1986 moved by complainant M/s Sainsons Papers against Lexus India , the opposite parties.

2.            Brief facts of the present complaint are that the complainant is a duly registered  private  company under the name and style mentioned above and Shri Randhir Singh Saini and Balkishan Saini are the directors of the said company. The Board of Directors had authorized Shri Rajinder Kumar Chopra to file the present complaint before this Commission. The complainant  had purchased one Lexus Luxury Car (Hybrid) on 8.8.2019 for a sum of Rs.56,71,000/- from the OP No.2 and the bill dated 8.8.2019 was duly issued in favour of the complainant. The complainant had got financed the said car from Lexus financial services.  The car was purchased by the complainant for personal use of its Directors and not for any commercial use.  The car is still under warranty period.  It is further submitted that the OP No.1 is manufacturer of the said car and the OP No.2 is authorized dealer of the car.  The car in question is having manufacturing defect and there is rear seat heating problem in the car and during the travelling, the rear seat of the car becomes so hot that it is impossible to sit on the said seat. The said problem was brought into the knowledge of the OP No.2 immediately and the OP No.2 had assured that the problem would be removed. The complainant had visited the OP No.2 many times as per their call and the OP No.2 had admitted that there is a fault in the car and the same would be removed very shortly. It is further submitted that as per the instructions of OP No.2, the complainant had again visited alongwith the car on 22.11.2019 and got checked the vehicle in which, the defect of rear seat heating was found by the OP No.2 and the matter was discussed in detail and it was assured that the said problem would be removed by installing FIELD FIXED PART. The said part was not available with the OP no.2 and they assured that the part would be installed  very soon and after installation of the said part, the problem will be removed. The  copy of the job card dated 22.11.2019 is enclosed.  It is submitted that on 9.12.2019, the complainant visited the OP No.2 as per their call and on that day FIELD FIXED MATERIAL was fitted in the vehicle for the rear seat heating concern  and it was assured that in future the problem would be removed completely.  That  the problem continued but due to winter season, the problem was not felt so high although the matter was brought in the knowledge of the OP No.2 many a times.  It is further submitted that as the summer season started, the complainant again visited on 8.5.2020 and got checked the vehicle. The OP No.2 had admitted that the problem has not removed so far and they tried again to remove the problem by cleaning the HIV filter and traction battery cooling part indication etc. The OP No.2 had clearly admitted that if the problem  still continues, the vehicle would be replaced free of cost by the company. He also assured that the matter would be taken up by them with the company i.e. OP No.1.It is submitted that despite repeated assurances, there was no relief from the said problem and the complainant had again visited the OP No.2 on 21.5.2020 with the same problem and again some filter etc. were cleaned and installed field fixed part was removed and traction battery  cooling etc. was done and the vehicle was kept under observation but the problem could not be removed.  The OP No.2  assured the complainant to take up the matter with the OP no.1 for replacement of the vehicle but no response was given to the complainant by OP No.2 regarding replacement of the vehicle and the complainant was unable to use the  vehicle. The meter reading of the vehicle on 8.5.2020 was 44533  whereas the reading on 21.5.2020 was 45410.  The complainant again visited the OP No.2 on 6.6.2020 and on that day also, the field fixed material was fitted in the vehicle for rear seat heating concern and it was assured that the problem would be removed.  The meter reading on that day was 45600 which fully proves that the complainant was not able to use the car in between 21.5.2020  to 6.6.2020 and the car went to Panchkula and came back only after repair.  The complainant on 10.6.2020 again visited the OP No.2 with the same problem and on that day, the OP No.2 made the observation that the vehicle came for seating warming issue and the case was discussed with TKM and the parts are already in transit and when the same will be received, they will call the customer for fitment. On that day also, the defects could not be removed.  Again on 27.8.2020 the complainant visited the OP no.2 for removal of the same problem  and the vehicle was compared with another vehicle and it was kept under observation but the defect could not be removed.  Thereafter, the Ops called the complainant alongwith car on 8.9.2020 and assured to remove the defect and the car was kept by the OPs for removal of the problem. The Ops asked the complainant to call after 3-4 days but it is more than 2 and a half month, the Ops had not informed the complainant which is a clear cut deficiency in services and unfair trade practice on the part of the Ops. The complainant has also spent more than Rs.2,50,000/- on insurance of the said car since the date of its purchase and the complainant is unable to use the said car. Thus, the complainant has filed the present complaint alleging deficiency in services on the part of the Ops and prayed that the Ops be directed to refund the sum of Rs.56,71,000/- i.e. cost of the car, Rs.2,50,000/- spent on transportation and insurance alongwith compensation of Rs.10,0000/-  for the mental agony and harassment faced by the complainant.

 

3.             Upon notice OP No.1 appeared and filed written statement disputing the claim of the complainant. It is submitted that there exists no legal entity by the name of Lexus India Limited. The instant reply is being submitted by Toyota Kirloskar Motors Pvt. Limited, who is manufacturer in India in respect of the vehicles, parts and accessories under the brand and trademark (s)Lexus and other similar marks.  It is submitted that car completed first 10,000 KMs without any complaint and on 7.10.2019, the first service was carried out by OP No.2.Subsequently, after completing nearly about 20,000Kms, the vehicle in question was brought to the other OP No.2  on 20.11.2019 with complaint-rear seat.  The OP No.2 carried out the repairs and the complainant confirmed that the alleged defects had been cured and o other problem was observed in the vehicle. Thereafter, the vehicle was serviced after running of 30,000/- KMs on 28.1.2020. Apart from usual wear and tear, no complaint and particularly, that of rear seat heating was reported by the complainant. The car was again serviced after 40,000 KMs on 23.3.2020. At this stage, no complaint with respect to rear seat heating was reported.  The car again came to OP No.2 on 8.5.2020, when the complainant reported the complaint-Engine Oil comes in speedometer. The car was repaired and complainant was satisfied with the services of OP No.2. Thereafter, on 16.5.2020, the complainant reported that the maintenance is required for traction battery cooling part. After repairs by OP No.2, and during road test, the problem did not repeat.  From the above, even after running the car for 45,000 KMs, no alleged heating problem was reported by the complainant during one instance i.e. on 20.11.2019, when the same was duly repaired by OP No.2.  From the above, it is beyond any shred of doubt that the vehicle does not have any manufacturing defects. For the same of brevity, the answering OP is  not annexing the detailed Job Cards of respective dates on which vehicle was brought to the service centre of OP No.2.However, craves leaves of this Commission  to produce the same as and when required and/or directed by this Commission. All other averments made in the complaint have been denied and prayed for dismissal of the present complaint.

 

4.             The OP No.2 filed its separate written statement disputing the claim of the complainant. Purchase  of vehicle in question has been admitted by the OP No.2. It is submitted that  Laxus India situated at Janpat Road, New Delhi is not the manufacturing unit because some other manufacturer has manufactured the car, hence, the complaint is defective and the same be dismissed with costs.  So much so it is wrong to allege that the OP No.1 is the manufacturer but the warranty clause depends upon the terms  and conditions accordingly circulated by the manufacturer. The heating problem in the real seat is not a case of manufacturing defect, as alleged by the complainant because it depends upon so many factors such as condition of roads, habit of driving, temperature of hot AC because it was never reported to the OP on 7.10.2019 during first service, hence no case is made out, as the complainant was using the vehicle comfortably without any difficulty apart from usual wear and tear and the vehicle was properly attended as and when it was received for any kind of repair.  So much so by this time, the vehicle has covered more than 60,000 KMs.  It is admitted that the complainant has visited on 20.11.2019. The vehicle was checked and found OK and the same was delivered back to the occupant of the car in question without any further complaint. So much so it was recommended that FIELD FIX PART may kindly be installed for smooth running for the vehicle in question and the same is installed, hence there is no deficiency in service on the part of the OP No.2 being dealer only.  All other allegations made in the complaint have been denied by the OP No.2 and  preliminary objections regarding maintainability, concealment of true and material facts,  have been raised and it was prayed that there is no deficiency in services on the part of the OP and prayed for dismissal of the present complaint.

5.             The complainant in support of his case has filed affidavit Ex.CW1/A and tendered documents Ex.C-1 to Ex.C-27 and closed his evidence.

6.             On the other hand, OP No.1 in support of its case has filed affidavit Ex.RW1/A and tendered documents Ex.R-1  to Ex.R-3 and closed its evidence.

7.             The OP No.2 in support of its evidence has filed affidavit Ex.RW2/A and closed its evidence.

 

8.             We have heard the learned counsel for the parties and gone through the material available on the case file.

 

9.             The learned counsel for the complainant has argued that the complainant purchased the vehicle Lexus Luxury Car (Hybrid) from the OP No.2 on 8.8.2019 for a sum of Rs.56,71,000/- from the OP No.1 vide bill Ex.C-3. OP No.1 is manufacturer of the said car and Op No.2 is dealer of the said car.   The complainant got the said car financed from Laxus Financial services and the complainant has paid the entire financed amount alongwith interest  to the OP no.1 as per repayment schedule  placed  on the file with Ex.C-3. The car was having five years warranty. It is argued that there is rear seat heating problem in the said car during the travelling. As per the instructions of OP No.2, the complainant visited the )OP No.2 on 22.11.2019. Ex.C-4  is job sheet. The rear seat heating problem was admitted by the OP No.2 and it was mentioned in the job sheet that as per Bawa San telephonic discussion field fix part required to be installed.  The complainant was again called on 9.12.2019 as per job sheet Ex.C-5. Service was done. Field fix material fitted in the vehicle for rear seating heating concern. This material was received from  Toyota. It was also mentioned that the amount would be claimed when TKM (Toyota Kirloskar Motors)  share the correct amount with the OP No.2. It is also argued that the complainant again went to the OP No.2 vide Ex.C-7 dated 8.5.2020 and on that date HC Filter clean done. Traction battery cooling part inducted for appointment call. Then the complainant again went to the OP No.2 vide job sheet Ex.C-8 on 21.5.2020  and as per the job sheet Ex.C-8 “HV filter clean done. Field fix part removed. Traction battery cooling part induction during road test problem not repeated vehicle was kept under observation. As per Ex.C-7 dated 8.5.2020 the vehicle had run 44533 KMs and as per Ex.C-9 dated6.6.2020 the vehicle had covered 45600 KMs and thus from 8.5.2020 to  6.6.2020 the vehicle had covered only 900KMs.The complainant alongwith the vehicle then visited the OP No. 2 on 6.6.2020 vide job sheet Ex.C-9 and this time the Field Fix material was again fitted in the vehicle for rear seat heating concern.  Material was received from MFG Toyota. Then the complainant alongwith the vehicle was called on 10.6.2020 vide job sheet Ex.C-10.The vehicle was brought with the problem of seat warming issue. Case was discussed with TKM   Parts already in transit  and the OP assured when they will receive the parts, then they will call the customer for fitment. The complainant was called alongwith the vehicle on 21.8.2020 vide Ex.C-11 and as per this job sheet the vehicle was checked for heating problem. The vehicle was compared with same another vehicle from Demo and guidelines given how to use of air conditioning system. Vehicle was kept under observation. Car Santizer Foca as per management approval. Approval for APP call was done. Then the vehicle was brought to the OP No.2 on 27.8.2020 and the vehicle was kept by the OP No.2 with them and was kept under observation and till today the vehicle has not been returned by the Ops  nor the cost of the vehicle was refunded by the Ops. The Ops could not be able to remove the defect of seat heating problem.   Vide Ex.C-13 the said vehicle was got insured by the complainant and the premium of Rs.1,10,561/- was paid by the complainant As neither the  vehicle was returned after removal of defect nor the amount was refunded, therefore, the new vehicle for Rs.35,26,250/- was purchased by the complainant for use. It is also argued on behalf of the complainant that ultimately legal notice Ex.C-15 was issued by the complainant but the Ops did not dare to reply the said notice of the complainant.  Thus, the complainant has argued that the vehicle in question is having manufacturing defect and the Ops be directed to refund the cost of the vehicle alongwith interest, compensation for the mental harassment and agony caused to the complainant. The learned counsel for the complainant has placed reliance on the authority Crompton Greaves Limited and another Vs. Daimler Chrysler India etc. in consumer case No.51 of 2006 decided on 8.7.2016 by the Hon’ble National Commission and Karnataka Power Transmission Corporation and another Vs. Ashok Iron Works Pvt. Limited etc. Civil Appeal No.1879 of 2003 (Supreme Court of India).

 

10.            On the other hand, the learned counsel for the OP No.1 has argued that there is no manufacturing problem in the vehicle. The manufacturing problem/defect if any can be noticed even before covering 100 KMs. In this case, the complainant has alleged that there is manufacturing problem in the vehicle, after the vehicle had already covered 20,000 KMs. There is no expert report showing the manufacturing defect in the vehicle.  It is also argued by the OP No.1 that the vehicle in question was purchased from Panchkula, therefore, this Commission at Kurukshetra has got no jurisdiction to decide the present complaint. It is also argued that the vehicle in question has been purchased for commercial use and as such this Commission has got no jurisdiction to decide the present complaint. The learned counsel for the OP no.1 has also argued that the complainant-firm has purchased the present vehicle for use by the directors of its firm for commercial use, therefore, the complainant is not a consumer as envisaged under the provisions of the Consumer Protection Act and the present complaint may kindly be dismissed.

 

11.            The Learned counsel for the OP No.2 has also argued that there is no manufacturing defect in the vehicle. While relying upon the job sheets, it is argued that the problem as pointed out is always written on the job sheets and merely writing problem pointed out by the owner of the vehicle, cannot be said to be a report of problem and it is merely assertion of the complainant. It is also argued that there is no manufacturing problem in the vehicle. The complainant has failed to produce any expert report showing manufacturing problem in the vehicle in question. The complainant was called several times through SMS and telephone calls but the complainant could not respond to take the delivery of the car and it cannot be said that the vehicle was not delivered by the Ops.  It is also stressed that from the reading of affidavit Ex.RW1/A it is clear that there is no problem in the vehicle.  The learned counsel for the OP No.2 has argued that the OP no.2 is merely a dealer and if any defect is found in the car, the OP No.2 would be responsible for the same. Thus, it is argued that the present complaint may kindly be dismissed.

12.            In the rebuttal arguments, the learned counsel for the complainant has argued that as per amended Consumer Protection Act, a complaint can be filed where the consumer resides and as the firm of the complainant is situated in Kurukshetra District, therefore, this Commission has got jurisdiction to file the present complaint here at Kurukshetra. Further it is argued that the vehicle is in possession of Ops since long and the Ops could got tested the vehicle and arrange expert report that there is no manufacturing problem in the vehicle in question.  It is also argued that the  fix material fitted was also got arranged from other companies and then it was removed when it was not found suitable. The Ops could not be able to remove the manufacturing defect I n the vehicle, therefore, Ops be directed to refund the price of the vehicle alongwith loss of the complainant so caused to the complainant firm.

 

13.            After hearing the learned counsel for the parties and on going through the material available on the case file, we are of the view that the  argument of the learned counsel for the Ops that the complainant is not a consumer under the provisions of the Consumer Protection Act is devoid of any force. Under the provisions of Consumer Protection Act,

 

(7) “consumer “ means any person

                (i) buys any goods for a  consideration which has been paid or promised  or partly paid and partly promised , or under any system of  deferred payment and includes any user of such goods other than the person who buys such goods f  or consideration paid or promised or partly paid or partly promised or under any system of deferred payment, when such use is  made  with the approval of such person but does not include a person who  obtains such goods for resale or for any commercial purpose; or

        (ii)  hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised or under any system deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for  consideration paid or promised or partly paid and partly promised, or under any system deferred payment , when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such service for any commercial purpose. 

         

                 The complainant firm has paid consideration for purchase of the said vehicle and as such the complainant-person purchased the said car is covered under the definition of the Consumer as mentioned above.

 

               Now question arises whether a firm is consumer under the Act. Under the Act a person means a firm is also enumerated in the case  as envisaged u/s 31 of the Act which is reproduced below:

 

                31  A person  includes:

                (i) an individual;

                (ii) a firm whether registered or not

 

                Further the Hon’ble National Commission in Crompton Greaves Limited’s case has held as under:

                The cars are purchased for the use of the Directors and are not to be used for any activity directly connected with commercial purpose of earning profit. Cars are not used for hire but are for personal use of the directors. Hence, it cannot be said that the complainant company has purchased the cars for commercial purpose.

 

                As per Section 31 (ii), the complainant a firm includes a  firm whether it is registered or not. Therefore, the complainant firm comes within the definition of the Consumer and the present complaint is well maintainable.        

14.                    The argument of the learned counsel for Ops that the vehicle in question was  purchased from Panchkula and this Commission at Kurukshetra has got no jurisdiction to decide the present complaint is devoid of any force because under the Amended Consumer Protection Act a complaint can also be filed at the place where the purchaser/consumer is residing. The firm of the complainant is situated in District Kurukshetra, therefore, this Commission has got jurisdiction to decide the present complaint.

15.                   The further argument of the learned counsel for the Ops that there is no manufacturing defect in the vehicle purchased on8.8.2018  The vehicle has been inspected by the Ops vide job cards Ex.C-4 dated 22.11.2019  to Ex.C-11 dated 21.08.2020 but the defect in the vehicle could not be removed by the Ops and since 21.08.2020 the vehicle is detained by the Ops in their workshop.  Till date Ops could not be able to deliver the vehicle to the complainant. The Ops have stated that several times they have asked the complainant to pick up the vehicle through SMS or telephonic calls but the Ops could not be able to prove on the record by way of any cogent and convincing evidence to prove that they ever showed desire to hand over the vehicle to the complainant. Regarding expert report showing defect, the vehicle since 21.8.2020 is parked in the workshop of the Ops and it is also the duty Ops  to prove by cogent evidence that there is no manufacturing defect in the vehicle in question but the Ops have also failed to do so. One thing remains that the complainant had to take the vehicle for removal of rear seat heating problem since beginning and now 21.8.2020 the vehicle is with the Ops.  The Hon’ble National Commission in  revision PETITION NO. 240 OF 2002 (From the order dated 29.6.2001 in Appeal No.355/94 of the State Commission Orissa) M/s. Scooters India Limited & Anr.  Vs. Madhabananda Mohanty & Ors.has held that as under:

 

             “Any consumer when he buys a new vehicle he is under the impression that a new vehicle is bound to be mechanically perfect or that a brand new vehicle would be defect free. A new vehicle could be deficient as well. It could be that some errors are insignificant but there may be many others which substantially impair use of the vehicle. If the vehicle is defective a consumer has a right to seek its replacement or refund of the price. Though the burden to prove the defect would be on the consumer, yet it must be understood that consumer is not bound to pinpoint the precise nature of defects or its cause or source. The warranty which is given for a vehicle is a warranty for whole of the vehicle and when it is found that the vehicle does not perform properly the warranty would be taken to have been breached even if no individual part could be identified as defective. It is not always necessary for the consumer to give expert testimony though if he does so it will add to the weight of the evidence. However, it must be shown that the use of the vehicle has been substantially impaired on account of the defects. If the defects are insignificant that could not be a case of replacement or refund.A consumer forum has however, to take into consideration consumer state of mind as well. After all he had invested in the new vehicle to buy peace of mind hoping that the vehicle is dependable and trouble free. But then coming to a consumer forum, consumer must first give notice to both to the dealer and manufacturer and both of them must be given reasonable opportunity to repair the defect if it is not inherent manufacturing defect. It is not that consumer has to take the vehicle to the workshop time and again for repairs to be carried out.

                   For this purpose manufacturer must maintain sufficient repair facilities reasonably close to all areas where the vehicles are sold. As a matter of fact accessibility of repair facility is implicit when a new vehicle is sold.”

                The Hon’ble National Commission in case M/s Hyundai Motors India Limited Vs. M/s Affiliated East West Press, decided on 29.11.2017 in revision Petition No.958 of 2007 has held as under:

                “Undisputedly, as stated above, a brand new car was required to be repaired repeatedly and the Opposite Parties are not in a position to find solution to control emission of white/black smoke. The petitioner also admitted that Valve Assembly EGR system were replaced under warranty. In this connection, we find force in the contention of the complainant that normally fuel injections and head are not dismantled/cleaned for at least a running distance of 50,000 KMs, whereas in this CRDi after 2,265 Kms  on February 1, 2005 injectors were required to be cleaned. But, the Opposite Parties still insisted that there was nothing wrong with the world class CRDi car.” The Commission further held that  where a consumer  experiences problems with a vehicle just a couple of months from the date of purchase, and the manufacturer is unable to rectify them, even if those problems are not major, the manufacturer has to give a replacement or a refund.”

16.            In the case in hand, the defect of rear seat heating developed just after two months of the purchase of the vehicle and  the Ops could not be able to remove the defect of the vehicle is proved.  As the Ops himself and after consultation with the other companies could not be able to remove the defect which occurred in the vehicle which after two months of its purchase, therefore, there is manufacturing defect in the vehicle in question. The Ops have also refunded the amount i.e. cost of the vehicle to the complainant and the vehicle is still parked in the workshop of the Ops,  therefore, in view of the facts and circumstances of the case and the authority cited above,  we are of the view  there is grave deficiency in services on the part of the Ops and the complainant is entitled to refund of the amount of Rs.56,71,000/-i.e cost of the vehicle taken by Ops at the time of  purchase  alongwith interest @ 6% per annum from the date  of this order, till its actual realization besides the due compensation for the mental harassment caused to it.

15.            In view of our above discussion and findings, we accept the present complaint and direct the Ops to refund the cost of the vehicle i.e.Rs.56,71,000/- to the complainant alongwith interest @ 6% per annum from the date of this order, till its actual realization. The complainant shall also be entitled for a compensation ofRs.20,000/- for the mental harassment and agony caused to it besides Rs.5000/- for the litigation expenses. The Ops shall make the compliance of this order within a period of 30 days from the date of  preparation of the  certified copy of this order. For the purpose of transfer of ownership in the RC of the said vehicle, the Ops shall prepare all the documents and the complainant shall sign the same so that the ownership of the vehicle in question may be transferred in the name of Ops. A copy of this order be supplied to the parties concerned as per rules and the file be consigned to the record room after due compliance.

 

Announced in the Open Commission.

Dated 30.11.2021.                                               President.

 

 

 

                Member             Member.

                …….