Delhi

East Delhi

CC/823/2010

DR. ATUL BHARGAVA - Complainant(s)

Versus

MARUTI COMPETENT - Opp.Party(s)

28 Oct 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.823/2010

 

	DR. ATUL BHARGAVA R/O C-87 DLF EXT. -II SAHIBABAD, GAZIABAD UTTAR PRADESH - 201 005	….Complainant
Versusf
1	Maruti Competent Automobiles Co. L.T.D. Plot No.-3 Gazipur, Delhi East -110092	……OP1
2	Regional Manager Maruti Udhog Ltd. Palam Gurgaon Road Gurgaon Haryana -122015	……OP2
3	Pankaj Motor Wazirabad Road Sahibabad Gaziabad, Uttar Pradesh	……OP3
4	United India Insurance Co. Ltd. 1ST Floor Dr. Subhash Bhargava Lane, Darya Ganj, New Delhi-110002	……OP4

 

Date of Institution: 28.09.2010

Judgment Reserved on: 13.10.2022

Judgment Passed on: 28.10.2022

                  

CORUM:

Sh. S.S. Malhotra (President)

Ms. Ritu Garodia (Member)

Sh. Ravi Kumar (Member)

 

Order By: Shri S.S. Malhotra (President)

 

JUDGEMENT

1. By this order I shall dispose off the present complaint filed by the Complainant against OPs w.r.t. deficiency in service by the  OP1 and OP3 in not repairing the vehicle, and against OP2 w.r.t not replacing the vehicle with new Car i.e. Swift (VXI) DL-2C-AF-7782. 
2. Prior to coming to the facts it is brought on the record that initially the Complainant filed the complaint only against two OPs i.e. Maruti Competent Ghazipur, Delhi (OP1) as well as United India Insurance Co.(OP4) but subsequently he amended the complaint and made four OPs i.e. as mentioned herein above in the cause title. 
3. Brief facts as stated by the Complainant in nutshell are that he purchased a new vehicle Swift (VXI) DL-2C-AF-7782 from respondent No.1 on 05.05.2016 for a sum of Rs.4,06,212/- and in the month of April 2007 he observed that paint of two left side doors and at other 5-6 places of the car had eroded which fact was brought to the notice of OP1 and then he visited the respondent No.3 i.e. the authorized service station, for repairing his vehicle.  The OP3 repaired the vehicle and raised the bill, which was paid by him and then he filed the claim with the respondent No.4, who passed the claim of Rs.5,689/-.  However, gradually after a period of time, he also observed that corrosion of paint has started on the other parts of the car i.e. from the petrol lid to all the four doors and for that he wrote to OP1 for replacement of the doors.  The issue was again taken up with Manager of respondent No.1 and he assured that the complaint would be rectified within 15 days but nothing was done.  He visited various times with his said vehicle to the OP1 but his problem was not rectified and ultimately finding no alternative, he filed the present complaint before this Commission inter alia praying that respondent No.1 and 2 be directed to replace his vehicle, with a new vehicle, as the vehicle sold by them was totally defective, and pay compensation to the extent of Rs.2,00,000/- for deficiency of service and pay Rs.25,000/- towards litigation expenses.  It is also prayed that respondents be directed to refund the amount of Rs.4,06,2012/- with interest. 
4. The OP1 has filed his reply taking preliminary objection that present complaint is not maintainable primarily on the ground of limitation as the Complainant purchased the vehicle in the year May 2006, he observed the defect in the April 2007, whereas he filed the present complaint in the year 2010 and under the provision of Section 24(A) of the Consumer Protection Act, 1986 the limitation period to file the complaint is only two years and as such complaint is barred by limitation, and they also pleaded.

1. That even otherwise the vehicle is covered under warranty for a period of two years or 40,000 Kms whichever is first, and in this matter the warranty period had expired in the year 2008 and as such complaint is not maintainable. 
2. That complainant is not a consumer under Consumer Protection Act, as he has not placed any material evidence on record, he has no locus to file the complaint, no application for condonation of delay has been filed and complaint is otherwise vexatious and malafide. 
3. On merit the purchasing of car is not disputed but it is denied that paint of the vehicle gave way on left side doors and 5-6 other places as alleged and it is submitted that on the perusal of the attached photographs, it seems that scratches on the car and removal of paint may not be due to manufacturing defect but may be because of some accident.  The investigation of car is very necessary to further comment on this issue and even otherwise Complainant never approached the answering OP1 for the repair/ replacement prior to the year 2011.  Copy of the history of repairs of the car as taken from records has been attached and there is no other material evidence placed by the Complainant on record with respect to rusting or the period when it started.  It is denied that any letter from the complainant was ever received by the answering OP at any point of time as alleged and it is reiterated that the Complainant never visited the answering OP with his complaint and he be put to strict proof thereof. 
4. It is further submitted that as and when Complainant visited the service centre, his complaint was redressed and since there is no manufacturing defect in the vehicle it cannot be replaced and it is prayed that complaint of the Complainant be dismissed. 

5. OP2 i.e. Maruti Suzuki India Ltd. had filed its written statement taking preliminary objection that Complainant has no locus to initiate the present complaint nor he has any authority to file the present complaint against answering OP.  Complaint is frivolous, vexatious and without any material evidence filed on the record therefore liable to be dismissed under Section 26 of Consumer Protection Act.  OP2 has also reiterated that the warranty was for a period of two years which has already lapsed and answering OP had discharged their obligation under warranty unequivocally during the tenure of warranty period, and they took following objections also:

1. That the complaint is hopelessly barred by time under Section 24(A) of the Consumer Protection Act and also in view of the judgment of the Hon'ble National Commission in the matter of:

'Surgichem Products (India) Pvt. Ltd. & Anr. Versus Export Credit Guarantee Corporation Of India Ltd. (ECFC) & Anr. IV (2008) CPJ 270 (NC); and they also relied the judgment in

M/S. Subramaniam versus Institute of Costs & works accountants of India, IV (2008) CPJ 188 (NC), wherein it was held that correspondence, in any way, does not extend the period of limitation.

2. It is further stated that this OP is neither necessary party nor proper party to the complaint. The opposite party no.1 is an independent entity having its own MOA and OP1 carries out its business on its own invoice & sale certificate. The answering OP has no involvement in the transaction of sale of goods/ vehicle to the individual customer and the relationship between the answering opposite party and the dealer is that of Principal-to-Principal basis. It is submitted that the Hon'ble National Commission in the matter of 'Maruti Udyog Ltd Versus Nagendra Prasad Sinha & Anr, 11 (2009) CPJ 295 (NC)  held:

'it is settled in case of relationship between the manufacturer and its distributor on principal to principal basis the manufacturer was not liable for the acts and its distributors.

 

OP2 has also relied upon the judgment of the Hon'ble Kerala State Commission i.e. F A 36/2007 decided on 27.08.2010 (appears to be incorrectly written as the judgment is of State Commission of Chennai) in the matter of David Friedman Vs E.R. Ravi Krishna wherein it was held that:

“for the act of dealer, manufacturer is not responsible for the transaction between OP no.1 & the complainant. Further relationship between 1st & 2nd OPs is on a principal to principal basis."

 

3. It is further submitted that Complainant has no privity with the OP2 as he neither entered into any contract for sale of goods with it, nor hired any services for consideration of OP2 nor any consideration has been paid to OP2 and therefore complaint is bad for mis joinder and non joinder of parties and therefore complaint may kindly be dismissed. 
4. It is further reiterated that Complainant bought the vehicle on 05.05.2006 and warranty obligation of answering OP had concluded on 04.05.2008 by efflux of time and therefore it is barred by limitation as far as OP2 is concerned. 
5. On merits the contents of preliminary objections are reiterated and it is submitted that OP3 is not an authorized service station of answering OP2 as alleged by the Complainant with whom the Complainant had been visiting.  It is specifically denied that corrosion started from the petrol lid or it spread over all the four doors of the car as alleged and it is submitted that OP is an ISO/TS16949 certified Company having international manufacturing standards and as such rusting of the metal on the product is only possible when the vehicle might have met with some accident or someone might have caused deep scratches on the body, on account of negligence of customer itself. Even otherwise the said fact has been observed after about one year by the complaint and even then no complaint was made to the answering respondent/OP. 

It is further submitted that there is no manufacturing defect in the vehicle even as per the allegation mentioned in the complaint and therefore complaint of the Complainant is liable to be dismissed and may kindly be dismissed. 

6. OP3 has filed its reply taking preliminary objection that complaint is barred by limitation as cause of action according to the Complainant himself, arose for the first time in the year 2007 whereas complaint has been filed in the year 2010 and even otherwise there is not even a single proof of any allegation w.r.t deficiency in service on the part of answering respondent in the entire complaint.  It is further stated that the relief sought is only against OP1 and OP2  and as such complaint against OP3 is liable to be dismissed and OP3 even otherwise be deleted from the array of the parties. 

1. It is further submitted that from the year May 2006 to May 2011 the car ran over thousands of kilometres, and, had there been any manufacturing defect, the car would not have run for such extensive period and in support of this has relied upon the Hon'ble National Commission in the case of R. Bhaskar Vs. D. N. Udani, 4 (2006) CPJ 257 (NC), wherein the Hon'ble National Commission has held that’if the vehicle was having manufacturing defect, it could not have been used for 1 year and 5 months and run more than 9500 kms. considering the fact that the vehicle have been in use for 1 year and 5 months and had run over 9500 kms, it is difficult to believe that it was suffering from any manufacturing defects.”  He also relied upon the Order of the Hon'ble National Commission in the matter Sushila Automobile Pvt. Ltd. Vs. Dr. B.N. Prasad and Ors. Rev. Petition No. 1652/2006, wherein it was categorically held that ‘.merely because the car had been taken to the workshop of the petitioner / dealer several times or because a number of letters/ complaints had been addressed to various functionaries and authorities of the opposite party - manufacturing company, it will not by itself amount manufacturing defect”.  The OP has further relied upon the law laid down by the Hon'ble National Commission in the matter of Dr. Hema V. Dakoriya Vs. Bajaj Auto Ltd. & Ors. 2 (2005) CPJ 102 (NC) wherein it was held that’.
2. “If a part could be replaced or a defect could be removed then replacement cannot be ordered."
3. The law laid down by the Hon'ble National Commission in the matter of M/s Tata Engg. & Locomotive Co. Ltd. Vs. M. Musa, (1986-95) Consumer 1367 (NS), wherein it was held that’.the Forum is authorised under the Act to have the defects removed, even if there are numerous defects and that it will be hard on the manufacturer to replace the vehicle or refund the price merely because some defects other than the manufacturing defects, which can be rectified or defective parts replaced.”  Accordingly, it is submitted that complaint of the Complainant against answering respondent (OP3) be dismissed.
4. On merit the contents of preliminary objection are reiterated and contents of complaint are denied by stating that complaint is totally baseless, misconceived and not maintainable and when there is no deficiency alleged against the OP3 in the entire complaint, the complaint against OP3 is liable to be dismissed. 

7. OP4 has filed its separate statement taking preliminary objection that complaint is liable to be dismissed as it is under valued, barred by limitation, it is filed without supporting any authority letter as the letter of authorization filed by the Complainant is without date and without place of execution, no grievance has been alleged against OP4.  Complaint is liable to be dismissed under Order 7 Rule 11 of CPC and it is false, vexatious and full of contradiction. On merit contents of complaint are denied and it is prayed that complaint of the Complainant be dismissed against OP4.    
8. One Rejoinder was filed by the Complainant to the written statement but it is not clear as to against which OP, that rejoinder was filed but he re-iterated the facts of the complaint.
9. However, it is a matter of record that Complainant meanwhile had filed an application for making joint inspection of the car on 16.05.2012 and the Ld. Predecessor had allowed that application on the same day thereby directing ’that car shall be inspected jointly by the technical representative of the complainant and the engineers of the Maruti Ltd. The vehicle shall be taken to any authorized dealer of the Maruti Udyog and the dealer shall get the inspection done of the car and shall prepare detailed report regarding the condition of the vehicle including the damage sustained, the parts which have been alleged to be rusted. They shall also prepare an estimate of cost for the repair of this vehicle. The report shall be submitted before this Forum on or before the date already fixed i.e. 23.07.2012.” 
10. However, the OP2 subsequently filed one application inter alia stating that the order dated 16.05.2012 passed by the Hon’ble Forum was without hearing OP2 and as such OP2 has been deprived off their right of hearing to raise the objection in that regard and therefore he has preferred a revision petition challenging the maintainability of the complaint as well as order dated 16.05.2012 and it was prayed that in the above facts and circumstances the appropriate order be passed as the revision petition before the Hon’ble State Commission was stated to be pending. 
11. This Commission has perused the record and it is a matter of record that vide order dated 23.08.2012 the Hon’ble State Commission issued notice to the respondent / present complainant, for hearing and proceedings in the this matter were stayed till further orders.  Subsequently, vide order dated 02.01.2013 the proceedings of this matter were ordered to be remained in abeyance till the order of the Hon’ble State Commission. However, Vide order dated 15.02.2019 the Hon’ble State Commission accepted the revision petition filed by OP2 and impugned order dated 16.05.2012 was set aside and parties were directed to appear before this Commission on 07.03.2019.  Accordingly, there were no proceedings after 02.01.2013 upto 29.04.2019 and the matter was ultimately taken up on 29.04.2019 by this Commission and proceedings were re- initiated.  The facts remained that the Order dated 16.05.2012 of the Forum was set-a-side and there is no inspection of the vehicle by experts. 
12. Fresh Notice was issued to OP3 but he had left the given address and thereafter no fresh address of OP3 was filed.  The Respondent No.4 meanwhile was proceeded Ex-parte and he had moved an application for setting aside Ex-parte proceedings against it.   Complainant filed its own evidence and OP2, OP3 and OP4 were not appearing thereafter.  Since, none was appearing for OP4 his application for setting aside Ex-parte order, was also dismissed in default vide order dated 23.05.2022.  Subsequently, OP1 has prayed for by way of an application, seeking permission to file its evidence by stating that after the filing of evidence by complainant, it has to be given one opportunity and thereafter one opportunity was given to OP1 who has also filed its evidence and now the crux of the proceedings are the that OP2, OP3 and OP4 are running Ex-parte, and Complainant as well as OP1 only, have filed their respective evidences.
13. The Complainant in his evidence has reiterated the facts of the complaint and has not exhibited any document.  The OP1 in his evidence has re-iterated the fact of its written statement, and has filed the vehicle’s history as exhibit OP1/1 and no other document was exhibited.    
14. The Commission has heard the arguments and perused the record. 
15. The Complaint of the Complainant in nutshell is that Complainant purchased the vehicle in May 2006 and in April 2007 he observed that paint of the vehicle has eroded, he mailed the complaint to OP1 and as per its advice, visited OP3 who painted the vehicle but again it was observed that paint has eroded from various other parts of the car and initially he prayed for replacement of the doors and subsequently he has made a prayer that the vehicle has a manufacturing defect and as such the vehicle be replaced and compensation be granted.  The prayer as sought by the Complainant is basically against OP1 and OP2.
16. Although, as per record OP4 has been made a party by the Complainant, yet as per the complaint itself when the vehicle was sent to the workshop of OP3 for the first time, he raised a claim from the OP4 and certain claim was given by insurance i.e. of Rs.5,689/- and apart from that allegation there is no other prayer against the OP4 either in the complaint or in the evidence.  Apparently, there is no deficiency alleged by the Complainant against OP4 and therefore the complaint of the Complainant against OP4 is not maintainable on merits and is dismissed. 
17. Similarly, the Complainant visited OP3 i.e. Pankaj Motors and informed the defect in the vehicle, the vehicle was painted and handed over to the Complainant and thereafter there is no deficiency was alleged against OP3 in the entire complaint.  Therefore complaint against OP3 is also dismissed for want of any specific deficiency alleged. 
18. Now, the complaint only remains against OP1 from whom the Complainant purchased the car and OP2 who is the manufacturer of the car.  The relief sought against OP2 is w.r.t. replacement of the car alleging that defective car has been sold.  It is settled law that for the purpose of proving that there is any manufacturing defect the Complainant has to take opinion from the expert.  In the present matter the Complainant filed an application for having the joint inspection of the vehicle which application was initially allowed by this Forum but when that order dated 16.05.2012 was challenged before the Hon’ble State Commission the Hon’ble State Commission vide order dated 15.02.2019 has allowed the revision petition of OP2 which interalia means that the order passed by this Forum on 16.05.2012 for joint inspection has been set-a-side and since Complainant has not challenged that order of the Hon’ble State Commission, that order has become final and in absence of any technical expert opinion with respect to any manufacturing defect, the complaint of the complainant against OP2 is also not maintainable.  Even otherwise if the complaint is only with respect to erosion of certain paints on the door or on the some other part of body it cannot be termed as any manufacturing defect with the whole vehicle. 

‘The Hon'ble National Commission in the matter Sushila Automobile Pvt. Ltd. Vs. Dr. B.N. Prasad and Ors. Rev. Petition No. 1652/2006, has held that’.merely because the car had been taken to the workshop of the petitioner / dealer several times or because a number of letters/ complaints had been addressed to various functionaries and authorities of the opposite party - manufacturing company, it will not by itself amount manufacturing defect.’

 

“Further, the Hon'ble National Commission in the matter of Dr. Hema V. Dakoriya Vs. Bajaj Auto Ltd. & Ors. 2 (2005) CPJ 102 (NC) has held that. ‘if a part could be replaced or a defect could be removed then replacement cannot be ordered." 

“Further,  the Hon'ble National Commission in the matter of M/s Tata Engg. & Locomotive Co. Ltd. Vs. M. Musa, (1986-95) Consumer 1367 (NS), has held that’.the Forum is authorised under the Act to have the defects removed, even if there are numerous defects and that it will be hard on the manufacturer to replace the vehicle or refund the price merely because some defects other than the manufacturing defects, which can be rectified or defective parts replaced.”

19. Therefore, Complainant has not been able to prove that there was any deficiency of service on the part of OP2 or there was any manufacturing defect in the vehicle.  Complaint of Complainant against OP2 is also dismissed.    
20. Now, coming to the pleadings w.r.t. OP1.  Complainant purchased the vehicle from OP1 in the year 2006 and made first complaint in the year 2007 which was taken care of and thereafter she filed the present complaint in the year 2010 claiming certain deficiency.  Main objection of OP1 is that complaint is barred by limitation and even otherwise it is beyond the warranty period.  No doubt there is no application filed by the Complainant w.r.t. condonation of delay nor there is any explanation as to, why the Complainant had filed the complaint in the year 2010 whereas he had the knowledge w.r.t. erosion of the paint in the year 2007.  There is no explanation why this complaint was filed so late i.e. in the year 2010 i.e. on 13.05.2010. 
21. This Commission is of the opinion that this issue of limitation could have been dealt by the forum at the initial stage. No doubt the proceedings remained stayed for about 6 years in this matter this Commission although is also of the view that the complaint is barred by limitation, however this Commission is deciding the complaint on merit as well as since the claim of the complaint against OP2, OP3 and OP4 has already been dismissed on merit.     
22. Coming to the merit aspect. The complaint is only with respect to the erosion of the paint.  The Complainant has already received the amount so spent by the Complainant on such repairs from the Insurance Co. OP4. Thereafter there is no specific complaint made by the Complainant with respect to the erosion of the paint or with respect to any other defect to the OP1. The application filed by the Complainant for inspection has already been dismissed by the Hon’ble State Commission and that order has become final. The warranty period also expired in the year 2008 and as such complainant has no further right to ask for any deficiency w.r.t. repairing of the vehicle in the year 2010. Further, as per the history of the vehicle ,it was taken to OP1 about 6 to 7 times. It was held in Hon'ble National Commission in the matter Sushila Automobile Pvt. Ltd. Vs. Dr. B.N. Prasad and Ors. Rev. Petition No. 1652/2006, wherein it was categorically held that ‘.merely because the car had been taken to the workshop of the petitioner / dealer several times or because a number of letters/ complaints had been addressed to various functionaries and authorities of the opposite party - manufacturing company, it will not by itself amount manufacturing defect”.  It is also matter of record that initially the car was taken at service center within the warranty period, and subsequently beyond the warranty period which was chargeable at some point of time and for that no deficiency on the part of OP1 has been alleged in the entire complaint. Even otherwise these services were routine services.  Further, from the vehicle history as taken from record, it is clear that the Complainant never approached any authorized service centre of OP2 during the said period with regard to the such problem of rusting or erosion of the paint.  In Sushila Automobiles Vs Birendra Narain Prasad Hon’ble NCDRC held that’the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the vehicle suffered from inherent manufacturing defect. Opinion of an expert body in such cases would be an essential in put. The Hon'ble Supreme Court as well as this Commission in a number of cases have held that unless this onus is satisfactorily discharged by the complainant, the liability of the manufacturer would be limited to removal of the defect and/or replacement of the parts." Therefore, the Complainant has not been able to prove any manufacturing defect in the vehicle or any deficiency on the part of the OP1 also.
23. Keeping in view of the totality of facts and circumstances this Commission is of the opinion that Complainant has failed to prove w.r.t. any deficiency of service by the OPs, and the complaint is also barred by limitation. Accordingly, complaint of the Complainant is dismissed. 

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room.

Announced on 28.10.2022