Haryana

Ambala

CC/238/2022

Ajay Kumar - Complainant(s)

Versus

Maruti Udyog Pvt Ltd - Opp.Party(s)

17 Sep 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	238 of 2022
Date of Institution	:	20.06.2022
Date of decision	:	17.09.2024

Sh. Ajay Kumar aged about 53 Years s/o Sh. Om Parkash prop. ZEE Electronics, 200, Railway Road, Ambala Cantt.

……. Complainant

Vs.

1. Maruti Udyog Private Limited through it's Managing Director, 1, Nelson Mandela Road, Vasant Kunj, New Delhi-110070.
2. M/s Eakansh Wheels though it's Managing Director, Village Tepla, Ambala Jagadhari Road, Tehsil and District Ambala.

….…. Opposite Parties

Before:         Smt. Neena Sandhu, President.

                     Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:        Shri Kuldeep Arora, Advocate, counsel for the complainant.

                     Shri Abhishek Bansal, Advocate, counsel for the OP No.1.

                     Shri U.S. Chauhan, Advocate, counsel for OP No.2

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

a)To deliver a new car by way of exchanging the defective car sold  by the OPs to the complainant.

(b)To pay Rs.2 lacs as compensation for mental agony and physical harassment suffered by the complainant.

(c) To pay Rs.45,000/- as cost of litigation.

2.             Brief facts of the case are that the complainant was looking for a new family car for his personal use. Accordingly, he approached OP No.2 for the said purpose. OP No.2 showed him Maruti Suzuki Ertiga Car and assured that it is the best car in this segment and is most suitable to complainant. On the assurance and representation of the OP No.2, the complainant purchased a Maruti Suzuki ERTIGA VXI CNG, 1.5L 5MT-ERRCBV1 bearing Chasis Number MA3BNC22SMJ381315 and Engine Number K15BN9172906, Colour Met. Magma Gray-Z7Q, Bharat Stage-6 on 14-09-2021 vide invoice number 16/VSL/21000492. From the very first day the Air Conditioner of the above said car was not working properly and was not cooling properly. The complainant informed OP No.2 about the said problem. OP No.2 told the complainant that the Air Conditioner will work properly within few days. Since it was the start of winters, therefore the air conditioner was not used but at the onset of the summer season, the complainant again noticed that the defect is still persisting. Thereafter, on 19-03-2022 the complainant again visited OP No.2 and complained about the above said problem of the Air Conditioner of the above said Car. The mechanics of OP No.2 told him that the gas of AC is very low and they refilled the same and also changed the Compressor Oil etc. of the AC and assured him that now the AC would work properly but the problem remained same and the AC was not cooling the car properly. The complainant again approached OP No.2 and narrated the problem faced by him with the car.  OP No.2 never gave any heed to complainant's requests and used to linger on the matter on one pretext or the other. Thereafter, on 10-04-2022 the complainant again visited OP No.2 and got checked the AC of the car from it's mechanics.  OP No.2 changed the AC compressor and assured him that now the AC would work properly. The problem remained same even after change of AC compressor of the above said Car. In addition to that, the Car engine started overheating and started making loud noises. The complainant again approached OP No.2 and told about the said problem.  OP No.2 again started dilly dallying the matter by making lame excuses. On several requests of complainant, OP No.2 told him to part the said car in its workshop for inspection. Accordingly, the complainant parked the above said car on 25-04-2022 in the workshop of the OP No.2. The OP No.2 handed over the said car to the complainant on 16-05-2022 but the problem remained the same. When complainant pointed out about the problem, the OP No.2 pressurized him to give approval to dismantle the engine head of the car and also informed him that this job will not be covered under Warranty and it will charge for the said job from the complainant.  OP No.2 also charged Rs. 2440/- from him for that job. From 16-05-2022, till date the complainant is requesting OP No.2 to check the above said problem, but it insisted the complainant to accord his approval for dismantling the Engine Head, which clearly shows that he has been sold a defective car, which requires such repair work in few months of its purchase and one can expect further troubles from the same. The OPs sold a brand new car to the complainant for a consideration but delivered him a defective Car. Such act of omission or commission of unfair trade practice of both the OPs caused the complainant financial loss and injury, physical and mental harassment as well. The complainant served a Legal Notice dated 27-05-2022 upon the OPs through his counsel whereby he asked them deliver a new Car of the same segment and to pay the complainant an amount of Rs. 2 Lakhs as compensation for causing him mental and as well physical harassment but to no avail.  Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version wherein it  raised preliminary objections to the effect that the complaint has been filed by the complainant with an afterthought to obtain undue gains from  OP No.1; the complainant bought the vehicle in question for "business/ commercial purposes" and has no right to raise any claim against  OP No.1;  the present complaint is without any cause of action against  OP No.1; the complainant is making purposeful and extensive usage of the vehicle in question and filed this false complaint to get unwarranted gains; the complainant has filed a false and frivolous complaint without any material on record against  OP No.1; the complainant has failed to set out any case for deficiency in services as per section 2(11) or defect in goods as per section 2(10) or unfair trade practice as per section 2(47) of The Consumer Protection Act, 2019; the complainant is not a Consumer' of  OP No.1  as  OP No.1  is neither privy to the transaction for sale of the vehicle in question nor received any consideration for the same  etc. On merits, it has been stated that the reality of the matter is that the vehicle in question was purchased by the complainant on 14.09.2021 from OP No.2. The vehicle in question was sent to the workshop of OP No.2 on 11.10.2021 at 1521 kms and 17.01.2022 at 6215 kms for 1st free inspection service and 2nd free inspection service, respectively. But any concern related to AC was not reported by the complainant on both the visits which indicate the false nature of the complaint. The vehicle was sent to the workshop of OP No.2 on 19.03.2022 and AC not effective was reported as demanded repairs. The vehicle was inspected, and it was observed that AC gas was less due to leakage from O-ring. The compression oil and O-ring were replaced and AC gas was filled on free of cost basis under warranty. The vehicle was then sent to workshop of OP No.2 on 10.04.2022 and AC not working was reported as demanded repairs. The vehicle was inspected and it was observed that AC compressor required replacement. The AC compressor was replaced on free of cost basis under warranty and the cooling was found to be in Ok condition. The vehicle was always attended as per warranty terms and conditions. The vehicle was sent to workshop of OP No.2 on 25.04.2022 for 3rd free inspection service and AC not effective and engine overheating was reported. The complainant informed that the vehicle was driven in water-logged area post which the engine overheating and AC concern was observed. The vehicle was inspected and it was observed that the said concerns were present due to vehicle being driven in water logged area. Due to water entry, AC of the vehicle gets cut-off and cooling fan was running at high speed. Since the cause of said failure was not due to any defect, the necessary repairs could not have been carried out under warranty as per Clause 4(5) and were to be carried out on payment basis. The same was duly communicated to the complainant vide email dated 03.05.2022 and approval was sought for dismantling and inspection for resolution. However, the complainant did not give approval for the same. The complainant was again requested vide email dated 06.05.2022, 08.05.2022, 09.05.2022 and 16.05.2022 but the complainant did not provide approval and took the delivery of the vehicle without getting it repaired on 16.05.2022 for the reasons known best to him. The complainant was again requested to provide approval vide email dated 27.05.2022, 30.05.2022 and 20.07.2022 but the complainant has not given his approval for the reasons known best to him depriving  OP No.2  to fulfill the warranty obligations. Hence, the necessary repairs in the vehicle could not be done due to the negative attitude of the complainant. OP No.1 under the warranty, is only responsible for providing warranty services during the warranty period i.e., 2 years or 40,000 kms, from the date of sale. The said warranty is subject to certain terms and conditions and limitations as set out in Owner's manual & service booklet. Since the vehicle being driven in water-logged area, hence the repairs could not have been carried out under warranty as per Clause 4(5). The complainant has categorically failed to set out any case for compensation within the provision of Section 39(1)(d) of the Act. Rest of the averments of the complainant were denied by the OP No.1 and prayed for dismissal of the present complaint with exemplary costs.
4.            Upon notice, OP No.2 appeared and filed written version and raised preliminary objections with regard to maintainability and cause of action etc. On merits, it is stated that there was concern of AC not working since purchase of the vehicle in question and the concern was reported multiple times to answering respondent but the concern could not be resolved. It is further been alleged that the vehicle was sent to the workshop of OP on 25.04.2022 but the repairs were not carried out and since 16.05.2022, the complainant has been requesting OP No.2 to check the vehicle for the concern of AC and overheating but the concern has not been resolved. The reality of the matter is that the vehicle in question was purchased by the complainant on 14.09.2021 from OP No.2. The vehicle in question was sent to the workshop of OP No.2 on 11.10.2021 at 1521 kms and 17.01.2022 at 6215 kms for 1^st free inspection service and 2^nd free inspection service, respectively. But any concern related to AC was not reported by the complainant on both the visits which indicate the false nature of the complaint. The vehicle was sent to the workshop of OP No.2 on 19.03.2022 and AC not effective was reported as demanded repairs. The vehicle was inspected and it was observed that AC gas was less due to leakage from O-ring. The compression oil and O-ring were replaced and AC gas was filled on free of costs basis under warranty. The vehicle was then sent to workshop of OP No.2 on 10.04.2022 and AC not working was reported as demanded repairs. The vehicle was inspected and it was observed that AC compressor required replacement. AC compressor was replaced on free of costs basis under warranty and the cooling was found to be in OK condition. It is pertinent to note that the vehicle was always attended as per warranty terms and conditions. The vehicle was sent to workshop of OP No.2 on 25.04.2022 for 3^rd free inspection service and AC not effective and engine overheating. The complainant informed that the vehicle was driven in water-logged area, post which the engine overheating and AC concern was observed. The vehicle was inspected and it was observed that the said concerns were present due to vehicle being driven in water logged area. Due to water entry, AC of the vehicle gets cut-off and cooling fan is running at high speed. Since the cause of said failure was not due to any defect, the necessary repairs could not have been carried out under warranty as per Clause 4(5) and were to be carried out on payment basis. The same was duly communicated to the complainant vide email dated 03.05.2022 and approval was sought to provide approval for dismantling and inspection for resolution. However, the complainant did not give approval for the same. Complainant was again requested vide email dated 06.05.2022, 08.05.2022, 09.05.2022 and 16.05.2022 but the complainant did not provide approval and took the delivery of the vehicle without getting the repairs on 16.05.2022 for the reasons known best to him. Complainant was again requested to provide approval vide email dated 27.05.2022, 30.05.2022 and 20.07.2022 but the complainant has not given his approval for the reasons known best to him depriving OP No.2 to fulfill the warranty obligations. Hence, the necessary repairs in the vehicle could not be done due to the negative attitude of the complainant. OP no.1 under the warranty, which is part and parcel of the sale contract. OP No.2 is only responsible for providing warranty services during the warranty period i.e 2 years or 40,000 kms, from the date of sale. The said warranty is subject to certain terms and conditions and limitations as set out in Owner’s manual and service booklet. The alleged concern in the vehicle was due to vehicle being driven in water-logged area, hence the repairs could not have been carried out under warranty as per clause 4(5). The complainant has categorically failed to set out any case for compensation within the provision of section 39 (1) (d) of the Act. Rest of the averments of the complainant were denied by the OP No.2 and prayed for dismissal of the present complaint with exemplary costs.  
5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-13 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for the OP No.1 suffered statement on 29.07.2024 that written version of OP No.1, may be read as evidence of OP No.1 and closed the evidence of the OP No.1.  Learned counsel for the OP No.2 tendered affidavit of Ashish Bansal, Partner of OP No.2-M/s Eakansh Wheels, Office at Village Tepla, District-Ambala as Annexure OP-2/A and closed the evidence on behalf of OP No.2.
6.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
7.           The learned counsel for the complainant submitted that the OPs sold the defective vehicle which was suffering from inherent manufacturing defect. The AC and engine of the vehicle in question got defective within few months of its purchase i.e within warranty. The engine is the vital part of the vehicle and it is scary to ply the vehicle having defective engine on the road. Since, the vehicle in question was suffering from inherent manufacturing defect, therefore, the OPs were bound to replace the same with the new one. By not replacing the said defective vehicle with the new one, the OPs have not only committed deficiency in providing service but have also adopted unfair trade practice.  
8.           On the contrary, the learned counsel for the OP No.1 and 2 submitted that the complainant has failed to prove that the vehicle in question is suffering from manufacturing defects. They further submitted that vehicle was sent to the workshop of OP No.2 on 19.03.2022, as AC was not working.  The vehicle was inspected, and it was observed that gas in the AC was less, due to leakage from O-ring and the compression oil and O-ring were replaced and gas was filled in the AC on free of cost basis under warranty. On 10.04.2022, the vehicle was brought to workshop of OP No.2, with a complaint that AC was not working.  The vehicle was inspected and it was observed that AC compressor required replacement and as such, the AC compressor was replaced on free of cost basis under warranty and the cooling was found to be in Ok condition. The vehicle was always attended as per warranty terms and conditions. They further submitted that as far as heating of engine is concerned, it was because of the reason that the vehicle was driven in water-logged area. In order to check the reason for overheating of the engine, a request was made to the complainant to give approval to open the head of the engine but complainant refused to give the approval. 
9.           The purchase of the vehicle in question by the complainant as stated in his complaint from OP No.2; occurrence of defect in the AC and that the engine of the vehicle was found to be overheated is not in  dispute between the parties. Under these circumstances, the moot question which falls for consideration in the case is, as to whether, the complainant  is entitled to get any relief or not? It may be stated here that the complainant has firstly point out that the AC of the vehicle was defective and secondly, the engine of the said vehicle was overheating.
10.           First coming to the defective AC of the vehicle in question, it is significant to mention here that during pendency of this complaint, a letter dated 20.10.2023, was written by this Commission to the Principal/Incharge, Punjab Engineering College, University of Technology, Chandigarh directing him to constitute a panel of experts and examine the vehicle in question and submit the report in that regard.  Resultantly, the Head, Mechanical Engineering Department Punjab Engineering College, Chandigarh constituted a committee of expert’s. The said committee vide report dated 08.12.2023 clearly opined that the air conditioner not working properly of the vehicle in question may be attributed to a manufacturing defect.  Thus, from the report aforesaid, it is proved that the AC in question is suffering from manufacturing defects. The said report has not been challenged by the OPs. Thus the OPs are liable to replace the defective AC unit of the vehicle in question with a new one, free of costs.
11.           However, this report is silent on the issue regarding overheating of the engine of the vehicle in question. There is nothing on record to say that the engine of the said vehicle was also checked by the said Experts. The plea of the OPs No.1 and 2 is that the vehicle in question was driven in waterlogged area and thereafter, problem of overheating of engine occurred. However, in this regard nothing has been placed on record by the OPs No.1 and 2. From the record, it is borne out that the complainant purchased the vehicle in question on 14.09.2021 and on checking on 25.04.2022, overheating of engine of the vehicle in question was observed.  Meaning thereby, the problem of overheating of the engine occurred within the period of six months from the date of its purchase i.e within warranty.   It may be stated here that engine is the main part of the vehicle and in the present case the engine of the vehicle in question got defective within six months of its purchase i.e within warranty, therefore, we are of the view that if we order replacement of the engine with the new one, free of costs, that will make the ends of justice.
12.           In the case of Maruti Udyog Ltd. Vs Susheel Kumar Gabgotra and another (2006) 4 SCC 644, it has been held by the Hon’ble Supreme Court of India that if defects in various parts of a car are established, replacement of the full car is not justified. Replacement of the entire item or replacement of defective parts only called for. In this view of the matter, the prayer made for replacement of the car in question with the new one is not tenable, hence rejected.
13.           In view of the aforesaid discussion, we hereby partly allow the present complaint and the OPs No.1 and 2 , jointly and severally, are directed as under:-   
    1. To replace the defective AC unit and the engine of the vehicle in question, with the new one, free of costs, within the period of 45 days, after receiving the vehicle in question, from the complainant,   failing which OPs No.1 and 2 shall be liable to pay penalty @Rs.50/- per day from the date of default, till realization.  
    2. To pay Rs.5,000/-, as compensation for the mental agony and physical harassment suffered by the complainant and Rs.3,000/-, as litigation expenses, within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs No.1 and 2 shall pay interest @8% per annum on the awarded amount, from the date of default, till realization.
14.           At the same time, the complainant is directed to hand over the vehicle in question immediately, to the OPs, to do the needful, after receiving the certified copy of this order.
15.           Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 17.09.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President