CC No.1863.2015

Filed on 13.11.2015

Disposed on 23.05.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027.

DATED THIS THE 23^rd DAY OF MAY 2017

CONSUMER COMPLAINT NO.1863/2015                                                                                                                                                                                                                                                   

PRESENT:

    Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

            PRESIDENT

                 Smt.L.MAMATHA, B.A., (Law), LL.B.

                          MEMBER

                                            V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 13.11.2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to refund the price of the car Rs.9,37,907 Plus Rs.20,500/- along with interest of 12%.  Total Rs.9,58,407 Plus interest.  To pay back the service charges paid twice Rs.7310 and Rs.6789 with interest of 12% Total Rs.14,099/- Plus interest. To pay compensation of Rs.3,00,000/- for mental agony, to pay Expenditure incurred in registering the vehicle at RTO Rs.1,45,751/-, to pay the expenditure incurred towards the payment of insurance premium to the new India Assurance Company Limited for the premium paid Rs.35,609/- for the car.  To pay compensation for the expenditure incurred on travel by a hired vehicles and other private vehicles in absence of own vehicle, Rs.40,000/- approximately, to pay the cost of the case Rs.2,000/- and other reliefs. 

2. The brief facts of the complaint can be stated as under:-

In the Complaint, the Complainant alleges that the Complainant purchased Ford Ecosport car from Opposite Party No.2 on 04.12.2014 for a sum of Rs.9,37,907/-.  The said car has been registered with RTO, Bengaluru bearing Registration No.KA-03-MV-439 and the said car was insured with new India Assurance Company Limited.  On 07.03.2015 the Complainant had problem with clutch and the vehicle was not running properly.  The matter was informed to the Opposite Party No.2.  As per his advice the car was taken to their service center at Devasandra Industrial Estate, Mahadevapura service centre for checkup. On inspection they informed that the clutch failed.  The Complainant was further informed that this will not be covered under warranty as it is claimed to be driver fault.  On that day, the vehicle was only run 2381 Kms, driven by an experienced and licensed driver, Service Manager told that the Complainant has to pay for the parts and labour including clutch assembly.  The protested saying that it is a new vehicle 3 months old and ran only 2381 Kms. and talked to many of the service managers of Opposite Party No.2 with at least 10-12 long phone calls and also sent emails protesting and pleading the genuine case that he fault must be covered under warranty.  Finally service centre of Opposite Party No.2 offered some discount.  The Complainant was put into a lot of difficulty by Ford India Private Limited Opposite Party No.1 and its dealer Elite Ford Opposite Party No.2 without the availability of vehicle for the daily usage of the Complainant for nearly 5 days.    The Complainant taken delivery of the vehicle “under Protest for clutch issue”.  Out of compulsion Complainant paid Rs.7310/- under protest vide the Elite Ford Invoice No.ROABE102440A dt.12.03.2015.  The car had scratches also on Bonnet left side which were not there at the time of taking the vehicle to workshop.  This is another fault of Elite Ford which caused mental agony to the Complainant.  Again clutch failed on 08.06.2015, within about 3 months of previous clutch repair.  This time the Complainant wanted to change the work shop due to bad experience with the workshop of Elite Ford Opposite Party No.2, and sent the car to Metro Ford Opposite Party No.3 Lingarajapuram Service Station.  Since the car could not be driven, it was towed to service centre.  The Complainant was under lot of mental agony for the fact that the clutch failed within 3 months of changing it after running again about 2000 Kms only.  The Complainant was informed by the Metro Ford-Opposite Party No.3 service center that the clutch failed and it is not covered under warranty.  The Complainant again protested to pay for the repairs since the vehicle is under warranty.  Finally, since the Complainant needs vehicle without which finding it difficult to commute to office and also became expensive to travel by rented cab, the Complainant paid under protest Rs.6789/- as demanded by the service centre of Metro Ford-Opposite Party No.3 on 17.06.2015 with some discount.  Again within 2 months, on 12.08.2015, with only about 6032 Kms total running from the date of purchase.  The Complainant had problem with the clutch.  Third time within 8 months of purchase.  The Complainant informed about this problem to Metro Ford (OP3) service centre, Lingarajapuram service Manager, where the clutch was replaced during the second time failure in June 2015.  The driver of the service centre of Metro Ford OP3 took the vehicle on 14.08.2015 and informed the Complainant after 4 days ie., 18.08.2015, that the clutch has become defective due to driver over-riding the clutch and it has to be replaced.  The Complainant was also informed that it would not be covered under warranty and not extending any discount either, this time.  The Complainant has been driving cars of different makes and models for more than 10 years and never had any such problem with any car.  She is an experienced and expert driver, having owned and enjoyed the use of other cars for many years without such troubles.  In light of that, the Complainant cannot and would not accept the allegation made by Opposite Party No.1, Opposite Party No.2, and Opposite Party No.3 that the fault arose out of incorrect driving.  The Complainant states that the car is totally unusable after these incidents as it cannot be trusted any more to go defective again.  Nor is any other solution offered by the Ford Company or its dealers and service agencies.  As a result the car is a dead investment for the Complainant.  The Opposite Parties No.1 to 4 indulged in deficiency in service and wrong trade practice and did not honour the guarantee of the vehicle, nor were they able to repair it to last.  Since there was no response from any of the Opposite Parties, another reminder letter was sent to all Opposite Parties on 10.09.2015.  But till today there is no response from any of the Opposite Parties and they ignored any grievance.  The Opposite Parties had supplied defective goods, were not able to rectify the issue lastingly, ignored the troubles and hardships faced by the Complainant after paying for the car as well as repairs, did not provide any official and written response to the formal complaint letters sent and instead blamed an experienced driver for the issue with the car.   The Complainant has lost all faith in the car and its manufacturer and the dealer/service agencies and wishes to return the car to the company against a refund.  Hence this complaint.

3.   Even though, the notice was served on Opposite Parties No.1 to 4.  The Opposite Party No.3 fails to put their appearance.  Hence, the Opposite Party No.3 is placed ex-parte.

In response to the notice, the Opposite Party No.1, 2 and 4 put their appearance through their counsel and filed their version.  The Opposite Parties No.1 & 2 filed common version pleaded that the complaint is frivolous, lacks bonafides and is solely meant to harass the Opposite Parties.  The claims and allegations made against the Opposite Parties No.1 and 4 are wholly misconceived and baseless.  The Complainant has used the clutch in an abnormal manner while driving leading to its override.  Such a situation occurs when the driver of the vehicle consistently has his foot on the clutch regardless of whether the driver intends to shift gears.  It may also occur when the driver incorrectly shifts gears which makes the plates in the clutch assembly to accelerate past its material strength and get damaged.  Further, shifting to a low gear while driving at high speeds causes the driven plates to accelerate instantaneously to a speed far in excess of the burst strength due to the multiplication of the rotation speeds of the Gearbox.   The Complainant availed the first free service of the car on 08.03.2015 at the 2^nd Opposite Party’s Service Statin wherein the clutch kit and clutch slave cylinder were replaced.  At the time of servicing, the representatives of the Opposite Party No.2 had a detailed discussion with the Complainant wherein it was pointed out that the Complainant was misusing the clutch in her car which ultimately led to its breakdown.  In the discussion, the Complainant admitted her mistake and was specifically warned and advised to use the clutch judiciously as otherwise, it would result in the burning of the clutch assembly.  Thereafter, the Complainant again had problems with the car and brought his car to the 3^rd Opposite Party’s service station on 08.06.2015 and complained that the car was not functioning properly.  The 3^rd Opposite Party took the car for inspection and after examination found that the clutch was not functioning properly as it was damaged due to the manner in which it was operated.  The 3^rd Opposite Party again replaced the clutch kit, clutch slave cylinder and Fly wheel.  The 3^rd Opposite Party had noticed rapid deterioration of the clutch disk and had informed the Complainant that the disk may need to be replaced as the clutch is being overused and not being operated well by the Complainant.  The Complainant brought his car to the 3^rd Opposite Party’s Service Station for the third time on 14.08.2015, the 3^rd Opposite Party found the same problem in the clutch and informed the Complainant that the clutch disk was completely worn out due to misuse of the clutch and therefore had to be replaced.  However, the Complainant did not give his approval for replacement of the misused clutch disk.  It is relevant to mention that the service providers have provided the necessary and required services to enable the Complainant to drive his car in an optimal condition.   Hence, the Complainant cannot allege any deficiency in service on their part.  Further, the Complainant had purchased a brand new vehicle from the Opposite Party No.2 without any defect.  However, it is the Complainant’s own mistake of misusing the clutch in his car that has led to the present situation.  The Complainant cannot at this stage belatedly fasten the liability of his mistakes on the Opposite Parties.  The warranty on the car can be availed only under certain conditions and not when the Complainant is responsible for the damage caused to the vehicle.  The Opposite Parties are in no way responsible for the faulty driving by the Complainant.  The Complainant has been informed about the non-availability of the warranty and only after obtaining the Complainant’s consent were the necessary repairs and services provided.  Having consented for the services, the Complainant cannot at this stage accuse the Opposite Parties of deficient services.  The Complainant also has no right to claim damages for mental agony as the Opposite Parties have provided the Complainant with new fully functional vehicle and services whenever needed. All other allegations made in the complaint and prays to dismiss the complaint against Opposite Parties No.1 & 2. 

4. The Opposite Party No.2 field his separate version and pleaded that the complaint is frivolous, vexatious, the vehicle bearing No.KA 03 MV 439 sold by the Opposite Party No.2, who is a dealer for the Ford Cars, manufactured by the Opposite Party No.1  the Opposite Party submits that the vehicle was sold to the Complainant on 04.12.2014.  The warranty is provided by the Opposite Party No.1 Company.  On 07.03.2015 had complained regarding the clutch problem in the vehicle.  The Opposite Party No.2 after verifying came to know that for the replacement of clutch the Complainant have to pay its charges as the same is not covered under the warranty provided by the Opposite Party No.1.  The Opposite Party No.1 had also provided discount to the Complainant and replaced the clutch.  The Opposite Party No.1 submits that it appears the clutch has failed due to wrongful usage of the clutch while driving.   It is not within the knowledge of the Opposite Party No.2 that the Complainant taking the vehicle to the Opposite Party No.3 again with the same issued of clutch fails. The Opposite Party No.2 has not committed any deficiency of service there is no unfair trade practice.  Hence, prays to dismiss the complaint against Opposite Party No.2.

5. The Complainant, Ms.A.V.Madhavi has been filed her affidavit by way of evidence and closed her side.  On behalf of the Opposite Party No.2, the affidavit of one Sri.Gurjit Singh has been filed.  On behalf of the Opposite Parties No.1 & 4, the affidavit of one Sri.Tapos Kumar has been filed.   Heard the arguments of Complainant and Opposite Parties No.1, 2 & 4 parties.

6.      The points that arise for consideration are:-

1. Whether the Complainant has proves the alleged deficiency in service by the Opposite Parties ?
2. If so, to what relief the Complainant is entitled?

7.     Our findings on the above points are:-

                POINT (1):- Affirmative

                POINT (2):- As per the final Order

REASONS

8.   POINT NO.1:- As looking into the averments made in the complaint and also the version of the Opposite Parties, it is not in dispute that on 04.12.2014 the Complainant purchased Ford Ecosport car from Opposite Party No.2 for a sum of Rs.9,37,907/- and also in support of this the Complainant filed Tax Invoice.  Even by looking into this document also it is clear that the Complainant purchased Ecosport car on 04.12.2014 from the Opposite Party No.2 and further the Complainant in support of her case produced the photocopy of the RTO payment Challan.  From this evidence, it is clear that the Complainant after purchasing his car registered with R.T.O bearing Registration No.KA-03-MV-439 and also the Complainant was insured the said car with new India Assurance Company Limited.  In support of this also filed copy of the Insurance, it clearly reveals that the Complainant insured the said car with policy No.71050131140110003790 for a period from 04.12.2014 to 03.12.2015.

9. Even by looking into the averments of the complaint as well as version of the Opposite Party No.2 and the Opposite Party No.1 and 4 it is not in dispute that within 3 months of the purchase of the Ford Ecosport car i.e., on 07.03.2015 the Complainant had a problem with clutch and vehicle was not running properly the Complainant was informed to the Opposite Party No.2.  As per his advice the car was taken to their service center at Devasandra Industrial Estate, Mahadevapura.  Even this fact is also further clear as per the Invoice issued by the Opposite Party No.2 dt.12.03.2015.  As looking into this Invoice, it is clear that the Complainant car had a problem of kit clutch repair and clutch slave cylinder.  Afterword the Complainant again noticed the same problem i.e., clutch failed on 08.06.2015 within 3 months of the previous clutch repair, the Complainant trigger car with Opposite Party No.3.  The Complainant produced the Mail Communication informing the Opposite Party No.2 about clutch failure of her car which was worn out due within 3 months and car has already driven about 2,000 Kms. This mail is dt.07.03.2015.   In response to mail, the Opposite Party No.2 given a reply informing that the Complainant clutch assembly was completely worn out due to use or worn out clutch assembly and repair estimation is about 7000 produced the Invoice dt.17.06.2015.  By looking into this document, it is clear that again there is a problem of Kit clutch repair and Opposite Party No.3 had charged the repair for a sum of Rs.6,863/- again the Complainant had a same problem on 12.08.2015 within 8 months from the date of purchase of the car.  The Complainant informed this problem to Opposite Party No.3, in support of this Complainant produced the Reception Check Sheet issued by the Opposite Party No.3 dt.14.08.2015 Clutch problem not working properly. In this regard, the Complainant mail communication with Opposite Party No.3, but the Opposite Party No.3 have not rendered free service.  On the other hand, they undertake the repair of payment basis for that the Complainant has refused.  For that reason the Opposite Party No.3 have not attended the repair of the clutch problem of the Complainant car.  On the other hand, even according to the evidence of the Complainant that the Complainant took her car for rectification of the clutch problem on 08.06.2015 the Opposite Party No.3 has attended the problem and rectified, thereby there is no deficiency of service on the part of the Opposite Party No.3. 

10.  As looking into the evidence and allegations made in the complaint, it is crystal clear that the car purchased by the Complainant from Opposite Party No.2 which was manufactured by Opposite Party No.1 within 3 months of the Ford Ecosport car, that is on 07.03.2015 the Complainant had a problem noticed that clutch in the new car which is hardly run about 2000 Kms.  When the same was got it repaired again within 3 months i.e., on 08.06.2015 the same problem was found in the Complainant’s car then again on 12.08.2015, once again the Complainant car had a same problem of clutch problem this clear goes to show that the car purchased by the Complainant from Opposite Party No.2 which was manufactured by the Opposite Party No.1 has manufactured defect.

11. On the other hand, the defence of the Opposite Party No.1, 2 & 4 is that the alleged clutch problem is not manufactured defect but it is due to mistake of the Complainant has used the clutch in an abnormal manner while driving leading to its override.  Such a situation occurs when the driver of the vehicle consistently has his foot on the clutch regardless of whether the driver intends to shift gears.  It may also occur when the driver incorrectly shifts gears which makes the plates in the clutch assembly to accelerate past its material strength and get damaged.  Further, shifting to a low gear while driving at high speeds causes the driven plates to accelerate instantaneously to a speed far in excess of the burst strength due to the multiplication of the rotation speeds of the Gearbox.  In support of this defence, except the interested version of Sri.Gurjit Singh, Dealer of Opposite Party No.2 and Sri.Tapos Kumar, Authorized Representative of the Opposite Parties No.1 & 4 have not placed any clinching evidence, thereby it is not proper to accept the defence taken by the Opposite Parties No.1, 2 & 4 that the Complainant used the clutch in an abnormal manner while driving leading to its override. 

12.  Further defence of the Opposite Parties No.1 & 4 is that the warranty on the car can be availed only under certain conditions and not when the Complainant is responsible for the damage caused to the vehicle.  The Opposite Parties are in no way responsible for the faulty driving by the Complainant.  The Complainant has been informed about the non-availability of the warranty and only after obtaining the Complainant’s consent were the necessary repairs and services provided.  Having consented for the services, the Complainant cannot at this stage accuse the Opposite Parties of deficient services.  Even in support of this defence also except the interested version of Sri.Tapos Kumar, Authorized Representative of the Opposite Parties No.1 & 4 have not placed any evidence, if really the defect found in the Complainant’s car of the clutch assembly is not covered under the warranty than Opposite Parties No.1 & 4 have not produced any piece of evidence, but on the other hand the Opposite Parties No.1 & 4 have not placed any evidence in support of their defence that the defective clutch assembly is not covered under the warranty, thereby it is not proper to accept the defence taken by the Opposite Parties No.1, 2 & 4. 

13.  On the other hand, it is crystal clear that the defective car manufactured by the Opposite Parties No.1 & 4 is the Regional Office and Opposite Party No.2 is the Dealer of Opposite Parties No.1 & 4, he sold the defective car to the Complainant within 3 months from the date of purchase, the Complainant noticed the defect of the clutch assembly and informed the said defect to the Opposite Party No.2, the Opposite Party No.2 instead of rectifying in proper manner on free of cost, even though got it repaired by charging again within 3 months there is a same mistake, again of clutch assembly.  Even in 2^nd time also the Complainant got it repaired by paying charges thereafter again within 3 months there is a same problem of clutch assembly this is clearly goes to show that there is a manufactured defect in the said car purchased by the Complainant from Opposite Party No.2 and manufactured by the Opposite Parties No.1 & 4.  Even after informing the same, the Opposite Party No.2 have failed to rectify the defect, thereby there is a deficiency of service on the part of the Opposite Parties No.1, 2 & 4.  Hence, this point is held in accordingly.  

14. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint against Opposite Party No.3 is dismissed.

The complaint is allowed holding that there is deficiency of service by the Opposite Party No.1, 2                  and 4.

 The Complainant is directed to return the defective car to Opposite Party No.2. 

The Opposite Party No.1, 2 & 4 after receiving the defective car to refund a sum of Rs.9,37,907/- with interest at 12% p.a. from the date of order, till the date of realization. 

Supply free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 23^rd day of May 2017)

    MEMBER                                              PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Ms.A.V.Madhavi, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Photocopy of the car Invoice of Elite Ford dt.04.12.2014
2. Photocopy of the Driving License of the Complainant
3. Photocopy of the RTO registration payment challan number 0942470
4. Photocopy of the car Insurance Policy
5. Photocopy of the Invoice of accessories
6. Photocopy of the Invoice for the first repair by Elite Ford Opposite Party No.2 dt.12.03.2015,
7. Photocopy of Invoice for the second repair by Metro Ford Opposite Party No.3 service centre, sent by email to the Complainant
8. Photocopy of the Interactive Reception Check sheet of Metro Ford Opposite Party No.3 dt.14.08.2015 given to us by Metro Ford driver while taking vehicle to workshop
9. Photocopy of notice dt.18.08.2015 sent to Opposite Party No.1, Opposite Party No.2, Opposite Party No.3 and Opposite Party No.4 by registered post acknowledgement due
10. Photocopies of receipts of postal department for the registered post sent to Opposite Party No1, Opposite Party No2, Opposite Party No.3 and Opposite Party No.4. 
11. Photocopies of acknowledgements received by the Complainant duly signed by Opposite Parties as a proof of receipt of notice.
12. Photocopy of reminder letter dt.10.09.2015 sent to Opposite Parties No.1 to 4 by registered post acknowledgment due
13. Photocopy of receipts of postal department for the registered post sent to all Opposite Parties

Witness examined on behalf of the Opposite Party:

1. Sri.Tapos Kumar, the Authorized Representative of the Opposite Party No.1 & 4.

List of documents filed by the Opposite Party:

1. Copy of the Board Resolution dt.12.09.2013
2. Photos of clutch in good condition
3. Photos of clutch in bad condition.

     MEMBER                                             PRESIDENT