Ms. NIPUR CHANDNA, MEMBER

ORDER    

                                                     21.05.2024

1. The complainant has filed the present complaint alleging the deficiency in service on the part of the OP. In brief the facts of the  complaint are that complainant purchased a Maruti Ritz LDI Model A5E-413 having Chasis No. 440039, Engine No. 205936 and Key ID No. 5920 from OP for a sum of Rs. 5,65,000/- on 17.07.2013. It is alleged by the complainant that she booked the car with OP2 on 30.06.2013 and got the delivery of the vehicle on 17.07.2013 with meter reading of 55 kms. The car is having two years company warranty and two years extended warranty upto 8000 kms or 4 years whichever is earlier.

2. It is alleged by the complainant that OP1 sold the defective car to her through OP2 having the manufacturing defect of excess omission of black smoke and unusual consumption of engine oil. It is further alleged that from the day of purchase the vehicle was omitting excess black smoke and as such within one week of the purchase the car was taken to the workshop of OP2 on 27.07.2013 at a meter reading of 743 kms and at this juncture OP top up the engine oil and charged Rs. 4678/- from her despite the fact that the vehicle is under warranty.

3. On 25.08.2013 at a meter reading of 4176 kms the car was again taken to the workshop of OP and at this juncture again OP top up the engine oil and charged sum of Rs. 1493/- from the complainant.

4. Again on 25.09.2013 the car reflects low level of engine oils and there was excess omission of black smoke as such the complainant again visited work shop of OP2 at a meter reading of 7323 kms and again the engine oil was top up with 900 ml. On 26.10.2013 the car was taken to the workshop of OP2 at a meter reading of 9974 and at this juncture the engine oil of the car got completely consumed and as such the service engineer filled 3.5 ltr engine oil and again charges a sum of Rs. 5091/- from the complainant despite warranty.

5. On 23.12.2013 the car was again compelled to take to the workshop of OP2 on the same complaint of unusual consumption of engine oil and excess omission of smoke at a meter reading of 15277 kms and the engineer of the OP filled 1.4 ltr. Engine oil and again charges Rs. 3603/- from the complainant against the same. Again on 12.02.2014, the complainant towed the vehicle to the workshop of OP2 and besides service again the engine oil 3.1 ltr was filled and complainant was burdened with the  charges to the tune of Rs. 8556/-. It is alleged by the complainant that she wrote several email to the territorial service manager, Regional Manager of the OP in respect to the defect in the vehicle but both of them failed to redress her grievance.

6. On 14.03.2014, the car was again taken to the workshop of OP2 on the meter reading of 22018 kms and at this juncture the turbo of the car was changed and again 0.9 ltr. Engine oil was filled and further Rs. 2777/- charged to the complainant for the same. On 06.05.2014 the engine oil of the car got completely consumed and as such the car was again brought to the workshop of OP2 at a meter reading of 25800 kms and since then the car is lying with the workshop of OP2.

7. It is alleged by the complainant that she has taken the car loan of Rs. 375,000/- from ICICI Bank and is continuously paying the EMIs of Rs. 9561/- w.e.f. 01.08.2013. It is further alleged by the complainant that she suffered physical and mental agony and could not enjoy the smooth running of the car due to manufacturing defect. It is further alleged by the complainant that both the OPs are guilty of unfair trade practice for selling the defective vehicle to her. Before filing the present complaint ,  the complainant sent legal notice dated 2.06.2014 to both the OPs thereby requesting them to replace the car or to refund the cost. OP neither replied to the legal notice nor had complied the same. Being aggrieved by the conduct as well as the services of the OP complainant knocked the door of this Commission for redressal of her grievance.

8. Notice of the complaint was sent to both the OPs. OP1 & 2 filed their respective WS. It is stated by OP1 that OP2 is one of its authorized dealer and sale Maruti Suzuki range of vehicle to its customer under a contract for sale of goods enter into between customer and OP2. OP1 is never a party to that contract. It is further stated that as per the mechanical report the engine oil level of the vehicle was found correct. It is further stated that on first and second services the engine oil was top up on the request and for the satisfaction of the complainant. It is further stated that the excess engine oil consumption used to appear when the vehicle is used on high speed, engine oil consumption cannot be treated as manufacturing defect, moreover the cause of extra consumption of engine oil may be over loading, high speed driving,  viscosity of oil. It is further submitted that the OP2 had provided the requisite after sale service to the complainant as and when required up to the satisfaction of the complainant, hence, no cause of action arose in favor of the complainant and against OP1 for filing the present complaint. It is further stated that OP1 is liable up to providing the three free services and the same was duly provided by OP1 as such the present complaint be dismissed qua OP1.

9. OP2 filed its written statement wherein it denied any deficiency in service on its part and had stated that the car is lying in its workshop since 06.05.2014 due to adamant attitude of the complainant despite the fact that the vehicle has been repaired and all the defects have been removed. It is further stated that the sole motive of the complainant was to extort money from the OPs by abusing the process of law. The alleged defect developed in the car due to mishandling and improper care by the complainant. It is further stated that the car in question carries two years warranty however, there is no defect in the car and the complainant can seek the benefits of warranty as per the terms and conditions mentioned therein. It is further stated that since the alleged defect occurred in the car due to the negligence of the complainant and her family member no cause of action arose in favor of the complaisant and against OP2 for filing the present complaint, hence, the present complaint be dismissed with cost.

10. Rejoinder to the WS of both the OPs filed. 

11. Complainant filed her evidence wherein she has corroborated the contents of her complaint. Complainant has placed on record copy of invoice dated 30.06.2013, copy of insurance policy, copy of gate pass dated 17.07.2013, copy of extended warranty certificate, copy of the emails, copy of the job cards , copy of the loan closure statement issued by ICICI bank as well as the legal notice in support of her contention.

12. Sh. Avtar Singh Sidhy Territory Service Manager of OP1 filed evidence by way of affidavit on behalf of OP1 and has placed on record the copy of dealership agreement, job cards in support of its contention.

Sh. Pradeep Sharma General manager of OP2 filed evidence by way affidavit on behalf of OP2.

13.  All the parties filed their respective written arguments. We have heard the arguments advance at the bar by Ld. Counsel for complainant Md. Sameem, Rohit Singh counsel for OP2. Despite opportunities none appeared on behalf of OP1 for addressing arguments and  have perused the record.

14.  It is argued on behalf of complainant that since the date of purchase i.e 17.07.2023 , the vehicle in question visited the service centre of OPs on eight occasion that too with the similar issue of excess consumption of Engine Oil and emission of the black smoke for which the engine oil of the vehicle was filled in every visit. It is further argued that the copy of the Job Sheet placed on record clearly established the manufacturing defects in the vehicle and as such no expert opinion required. It is further prayed that the present complaint be allowed and relief claim be granted.

15.  On the contrary,  it is argued on behalf of OP2 that there is no expert report filed by the complainant to show that car in question is having the manufacturing defect, therefore, complainant is not entitle to claim any relief.

16. It is true that there is no expert report to shows that there was a manufacturing defect. The OP moved an application for inspecting the vehicle in question to ascertain the manufacturing defect alleged in the complaint during the pendency of the present complaint. As per the record permission was granted , and the vehicle was duly inspected by one Sh. A.S Sidhu having designation TSM-MSIL and one Sh. Dinesh Singh designated as Work Manager Service and the e-copy of the report was filed by OP1. The inspection report does not carry the signature of the inspecting officer as well as its assistance, moreover OP1 failed to placed on record the affidavit of inspecting officer in respect to the vehicle in question, hence, we are of the considered opinion that the inspection report placed on record by OP has no evidentiary values being neither signed and nor supported by an affidavit  hence, not considerable and rejected at threshold.

17. It has been observed by Hon’ble National Commission in scooter India Ltd. Vs. Madhabanda Mohanty and Ors. Vol.II (2005) CPJ 136 (NC) that 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 vehicle has been substantially impaired on account of the defect.

18.  In the present complaint case the averments were made by the complainant that the vehicle in question is having the manufacturing defect and as such she left the vehicle at the service centre of OP2 on 06.05.2014 despite giving an ample opportunity to the OPs to rectify the same from the date of delivery i.e. 17.07.2013 till 06.05.2014. she has narrated the entire episodes of the defects and the repairing work carried out by the service centre of OPs  in her complaint which clearly established  that the vehicle has been substantially impaired on account of the defect. As per the complaint for the first time the vehicle visited at the service centre of OP2 on 27.07.2013  and the engine oil was top  up just at 743 kms thereafter on 25.08.2013 she has placed on record the job slip which clearly establish that the engine oil level is less and as such the engine oil was refilled, again in the month of September, 2013 the vehicle visited the workshop of OP2 and at this juncture engine oil to the tune of 1.4 ltr has been filled up. Again on 26.10.2013 vehicle visited at the service centre of OP2 and at this time also beside the regular service 3.1 ltr engine oil was filled up and the complainant was compelled to pay Rs. 5091/-. As per the job sheet dated 23.12.2013 again 4.5 ltr engine oil was filled  in the vehicle on the meter reading of 15277. On 12.02.2014 the car was completely towed to the workshop of OP2 and 3.1 ltr engine oil was again filled up. On 14.03.2014 at a meter reading of 22018 kms the turbo of the vehicle was changed by OPs and this juncture also 1.9ltr of engine oil was filled and Rs. 2777/- was charged from the complainant. Even after the change of turbo again on 06.05.2014 the dashboard of the vehicle indicate low engine oil and as such complainant left the vehicle on the service centre of OP2.

19. The entire date wise events narrated in the complaint clearly establish that from the date of  purchase the vehicle in question was consuming extra engine oil. Even within 9 months of the purchase the turbo of the vehicle was changed by OP. All these defects although not directly admitted by the OPs in their written statement but they have accepted in their written statement that there is extra consumption of engine oil by the vehicle in question but to hide its fault OPs had stated in their WS that the alleged defect occurred due to negligent and mishandling of the car by complainant. Despite bare version no documentary evidence has been placed on record by OPs to establish the contention that the defect in the vehicle occurred due to mishandling by the complainant. It is further admitted by the OPs in their written statement that all the defects have been removed or rectified whenever the car is brought to the service station of OP2 and as per the requirement the turbo of the car was changed. This clearly establish that the car in question is having the manufacturing defect which OPs failed to rectify resultant in the continuous visit of the car at the service centre of OP for repairing compelling us to the conclusion that the car in question is substantially impaired on account of the defect.  This is a clear case of res ispa loquitor i.e. facts speak themselves, hence, there is no need to refer the vehicle to a third party for giving any expert report.
20.  It is admitted by the complainant that the vehicle covered 25800 kms when it was handed over to the service centre of OP2 on 06.05.2014. It is settled principle of law that valued of the vehicle should be reduced by its depreciation by taking into consideration 10% thereof. Needless to mention that the complainant has paid a sum of Rs. 5,65,000/- for the purchase of the vehicle in order to enjoy its fruits in the journey but during the period of 10 months, it was taken to the service station of OP eight times. Taking into consideration the entire facts and circumstances of the case we are of the considered opinion that OP1 & 2 sold the defective vehicle to the complainant as such both were liable of deficiency in service as well as unfair trade practice. Holding OP1 being the manufacture guilty of unfair trade practice we direct it as under:

1. Refund to the complainant a sum of Rs. 5 Lakhs i.e the cost of the vehicle. Complainant is directed to complete the transfer formalities of the vehicle in question.
2. Pay to the complainant a sum of Rs. 20,000/- for pain and mental agony suffered by her.
3. Pay to the complainant a sum of Rs. 15,000/- on account of litigation cost.

21. OP1 is directed to comply the order within 30 days from the date of receipt of this order failing which OP1 is liable to pay to the complainant interest @9% per annum from the date of non-compliance till realization.

22. 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 Forum on 21.05.2024.

SANJAY KUMAR                                               NIPUR CHANDNA                        

       PRESIDENT                                                         MEMBER