MS. NIPUR CHANDNA (MEMBER)

ORDER

01.03.2024

1.         The complainant has filed the present complaint under section 12 of the CP Act, 1986 alleging the deficiency in service on the part of OPs. The complainant purchased vehicle bearing registration no. DL4CAD 2029 having engine no. F14D3422790K , chasis no. MA6TF69M6HG06015, of make Model Chevrolet Aveo from OP-1 for a total sum of Rs. 3,00,000/-. Complainant paid Rs. 20,000/- as earnest money to OP vide receipt dated 08.05.2011. Complainant further paid a sum of Rs. 20,000/- in cash to OP on 13.05.2011 and the rest of amount of Rs. 2,60,000/- was financed by HDFC Bank for which the complainant is paying EMI regularly on time. It is further stated that the complainant also paid Rs. 30,000/- as miscellaneous charges including the insurance amount.

2.         It is alleged by the complainant that he is paying installments of Rs. 6456/- since the date of sanctioned of the loan amount of Rs. 2,60,000/- to HDFC Bank. It is further alleged by the complainant that just after 15 days of the date of purchase the engine of the said vehicle stopped working and started over heating within 10 kms of running, as such complainant approached OP and lodged the complaint. The mechanic of OP company stated that there was a minor problem in the self as such the vehicle was over heating, after making the minor repairing OP handed over the vehicle. Again after one and half month there was a problem of over heating and at this juncture after spending 2-3 hours the mechanic of the OP succeeded in repairing the vehicle and assured that the vehicle would run properly.

3.         Again on 29.07.2011, the same problem of overheating occurred with the vehicle and as such complainant again approached OP and after spending more than 32 hours the employee of the OP failed to satisfy the complainant and redressed his grievance. It is further alleged by the complainant that despite the vehicle runs only 1204 kms from the date of purchase and within 3 months of its purchase the OP denied the warranty and asked the complainant to pay the cost of Rs. 40,000/- for engine repairing work. Being aggrieved by the conduct of the OPs and harassed by the non-functioning of the vehicle in question just within 02 months of its purchase complainant left the vehicle with OP-2 and filed the present complaint for redressal of his grievance, hence, this complaint.

4.         Notice of the complaint was sent to both the OPs. Both the OPs filed their respective written statement thereby denying any deficiency in service on their part.

5.         OP-1 filed its written statement wherein it is stated that OP-1 purchased the used/pre-owned cars and sales them to the customers on “as is where is basis” hence no one can take guarantee about the life and engine of the vehicle. It is further added that the complainant after verifying and checking the vehicle in question from all angles have only dealt for its purchase and have also signed the delivery receipt after getting full satisfaction. It is further stated that complainant was in rough use of the vehicle because of which alleged problem occurred in the engine. It is further stated that as far as the warranty of the vehicle is concerned OP-2 is responsible for all warranties as per the delivery receipt, hence, the present complaint be dismissed qua OP-1 being the seller of the vehicle and not the service provider.

6.         OP-2 filed its written statement denying any deficiency in service on its part. It is further stated that OP-2 has not sold the said vehicle to the complainant nor has received any amount from the complainant in the said transaction, hence, complainant is not the consumer of OP-2. On 29.07.2011, a complaint was received from complainant and on preliminary inspection of the vehicle it was found that engine was chocked due to over heating and the over heating of the engine was occurred on account of negligence on the part of complainant as the vehicle has been run in heated condition without proper coolant in the vehicle. OP-2 also appointed the surveyor and loss assessor to assess the defect as well as loss in vehicle. Since the loss reported by surveyor does not covered under the terms of warranty and agreement of warranty as such the claim was repudiated and complainant was requested that defect would be cured on making the payment only.

            The complainant instead of getting the vehicle repaired left the vehicle in OP-2 premises for which OP-2 has to bear the burden of parking and other expenses for which OP-2 reserved its rights to recover from the complainant. It is further stated that since the vehicle in question does not fulfill the eligibility criteria of warranty issued by OP-2, the claim of the complainant was rightly rejected. It is further prayed that present complaint be dismissed with cost being frivolous one.

7.         Complainant filed his evidence by way of affidavit and has placed on record the copy of delivery receipt, cover note, earnest money receipt in original, copy of R.C, Bank statement, job card, invoice dated 13.07.2010 in the name of M/s Lease Plan India Ltd. in support of his contention.

On the contrary Sh. Tanu Kala partner of deals on wheels files his evidence by way of affidavit on behalf of OP-1. Sh. Percy Mahernosh Chief financial Officer filed his evidence by way of affidavit on behalf of OP-2 along with copy of surveyor report, copy of warranty terms and conditions, copy of franchisee agreement between OP-1 & 2 in support of his contention.

8.         Written arguments filed by complainant as well as by OP-1. Despite ample opportunities OP-1 & 2 failed to address the arguments. We have heard arguments advance at the bar by Ld. Counsel for complainant Sh. Vimlesh Kumar and have perused the record.

9.         Admittedly, the complainant has purchased the vehicle in question on 08.05.2011 and had received the delivery of the vehicle on 13.05.2011. The copy of the loan account statement as well as the NOC placed on record by the complainant clearly establish that complainant has availed a loan of Rs. 2,60,000/- from HDFC Bank and had successfully paid all the EMIs of the vehicle in question. Admittedly, complainant had paid a sum of Rs. 3 lakh to OP-1 against the purchase of the vehicle, he has also paid a sum of Rs. 9,093/- on account of Insurance premium against the said vehicle. The complainant has placed on record the carbon copy of the delivery receipt dated 13.05.2011 containing the terms and condition pertaining to the sale transaction as well as the warranty  in respect to the vehicle in question. It is clearly mentioned at point 5 of the terms and conditions that ‘ warranty stands as per MFCWL guidelines which is subject to change at MFCWL discretion’. It is further stated at point-6 that ‘warranty is an agreement between buyers and Mahindera First Choice Wheels Ltd.’ It is further mentioned at Point-9 that ‘under warranty for one year or 15,000 kms (from 42,544 kms)

10.       The bare perusal of the aforesaid condition no.5,6 & 9 of makes it clear that OP-2 offered the warranty against the vehicle in question which is covered for a period of one year or 15000 kms (from 42544 kms). Admittedly, the complainant had received the delivery of the vehicle on 13.05.2011 and the first complaint of over heating was lodged within 15 days of the purchase, thereafter, one and half month and finally on 29.07.2011 when the vehicle in question had completed only 1204 kms and 2 month 16 days. The complainant requested OP-2 to repair the engine of the vehicle in question free of cost as the same is duly covered under the warranty, however, OP under the pretext of negligent driving by complainant decline the warranty and asked him to pay the repairing cost for getting the vehicle road worthy .

11.       The OP-2 has placed on record the surveyor report in respect to the warranty claim of vehicle in question, the surveyor after inspecting the vehicle had come to the conclusion that “engine head gaskit was torn causing the coolant water and engine oil got mixed which cause the hydro static lock in the engine cylinder and resulted in its seizer”.

            The surveyor in its remark at point-3 has mentioned that “the vehicle as run without water by the customer which cause the overheating and resulted in torn engine head gaskit”.

            The surveyor had not mentioned in his report the parameters of the water level as well as the duration/interval in which the water has to be filled by the customers in the vehicle. As per the averments of OP-1 when the OP-1 had thoroughly inspected and checked the vehicle then the water level was also checked  by OP-1 while delivering the vehicle in question, moreover  no user manual was provided by the OPs for using the vehicle in question along with the delivery receipt, hence, in our view as per the sweetwill of his employer ,  the surveyor has incorporated point no.3 in its report thereby fastening the entire liability of engine seizure on the shoulder of complainant without assigning any cogent reason as well as the documents in support of his contention, hence, we are of the considered opinion that the surveyor report relied upon by OP-2 is totally biased and has no legs to stand .

12.       The OP-2 in its written statement at para-10 of True and Correct Facts itself admitted that  official of OP-1 as well as Mr. Vinay official of OP-2 met complainant on 28 March and requested him to take back the vehicle, they further offered repairing option to the customer on their own cost which was also rejected. This averment made by OP-2 in its written statement itself shows that the OP-2 under the false pretext of negligence driving firstly rejected the claim of the complainant and in order to save its skin and to protect itself from future consequences agreed to repair the vehicle free of cost.  The vehicle of the complainant is duly covered under the warranty, but OP-2 refused to provide the same and arbitrarily rejected the claim.This act of OP-2 squarely covered under the definition of deficiency in service, hence, we hold OP-2 guilty of deficiency in service.

13.       The OP-1 in its written statement had not denied that the vehicle sold by it is having the engine problem. The vehicle in question merely within 02 months of its purchase suffered from engine seizure defect, hence, we are of the considered view that the vehicle sold by OP-1 is defective one for which OP-1 is guilty of unfair trade practice.

14.       In view of the above discussion, we are of the considered opinion that both OP-1 & 2 are guilty of deficieny in service and unfair trade proactive. Holding OP-1 & 2 guilty of deficiency in service and unfair trade practice we direct them as under:-

i) OP-1 is directed to refund the cost of the vehicle i.e. Rs. 3 lakh along with interest @ 6% P.A from the date of filing of complaint i.e 08.09.2011 till its realization.

ii) OP-2 is directed to pay to the complainant a sum of Rs. 15,000/- on account of pain and mental agony suffered by him due to rejection of valid warranty in respect to the vehicle in question.

iii) both OP-1 & 2 are directed to pay to the complainant Rs. 10,000/- each on account of litigation cost.

15.       The OP-1& 2 is directed to comply the order within 30 days of the receipt of the order failing which OP-1 & 2 will be liable to pay the aforesaid amount along with interest @ 9% P.A from the date of receipt of order till realization. File be consigned to record room.

Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry.

Order be uploaded on www.confonet.nic.in.

Announced in open Commission on   01.03.2024.

Sanjay Kumar                    Nipur Chandna                               Rajesh

                 President                          Member                                          Member