MR. KUNDAN KUMAR KUMAI
This is an application under section 17 read with section 12 of the Consumer Protection Act, 1986.
Brief facts of the Complainant’s case are that, on 12/03/18 the Complainant had purchased one brand new vehicle, being Mercedes Benz GLA 200b Sports, bearing engine no.65193034126288, from OP no.3, with financial assistance of Daimler Financial Services India (P) Ltd., Topsia, Kolkata – 46. The vehicle had been registered in the name of the Complainant by the Registering Authority, Motor Vehicle Department, Siliguri and the number allotted was WB – 74 – AT – 9700.
Prior to the purchase, the Complainant had test-driven the vehicle, at Kolkata and being satisfied had booked the vehicle, on 30/01/18 and the vehicle had been delivered to the Complainant’s address at 3, K N Sen Road, PS – Dum Dum, North-24 Prgs., Kolkata – 28.
After delivery of the above vehicle, the Complainant noticed that vehicle was suffering from numerous defects like under carriage noise from front in rough roads, all doors and – dash board noise, clattering engine noise (chi chi) noise, wiper blade not working properly and headlight adjustments improper. The Compliant e- mailed her grievances to the OP no.3 on 13/02/19, informing regarding the numerus defects of the vehicle. But the technician of the OP no.3, failed to repair the faults at Siliguri. The OP no.3 then insisted that the Complainant’s vehicle be towed to Guwahati Workshop. He also intimated that in order to repair the vehicle at Kolkata Workshop the Complainant would have to incur the expenses for the extra miles, for towing the vehicle to Kolkata. The Complainant had agreed to pay the additional extra mile charges, for towing the vehicle to Kolkata Workshop.
On 11/03/19 the Complainant e-mailed the problems of the vehicle as follows:
- Under carriage noise
- Engine noise
- Wiper problem both front and rear
- Headlight problem
- Door noise
- Inside cabin noise
Thereafter, the vehicle was subjected to necessary repair and servicing works. On 4/4/19, after receiving the vehicle, the Complainant noticed that the defects of the vehicle was persisting and the defects of the vehicle was inherent.
On 14/11/19, when the Complainant was driving the vehicle, near Sevoke More, Siliguri, the Anti-Lock Braking System (ABS), Brake Assist System (BAS), Electronic Stability Programme (ESP) stopped functioning in the middle of the road and could have resulted in a terrible accident. The display board of the Odometer of the displayed “ABS, BAS, ESP trailer stabilization. The whole function, hill start assist and pre-safe are unavailable due to mal-function and it further display that the adapted brake lights may also have failed.” The OP no.3 had been informed about the mishap instantaneously and the Complainant had been advised to drive the vehicle at a speed below 20 km per hour, so that the vehicle could somehow be parked, in the parking space of the Complainant.
The Complainant had bought the esteemed brand like Mercedes Benz, from the OP no.1, the manufacturer and marketeer of the above brand vehicle but after the incident on 14/11/19, the hopes and expectations of the Complainant had been shattered after finding that the defective/faulty vehicle had been sold to her and the vehicle had been lying idle and the Complainant had to pay instalments without plying the vehicle.
Being aggrieved by the conduct of the OPs, the Complainant issued legal Notices to all the Opposite Parties by Speed Post, demanding replacement of the defective/faulty vehicle with the new vehicle of same Model and Colour or return the total price of the vehicle, including the expenses incurred by the Complainant for registering the vehicle, extra charges for financing and insuring the vehicle as well as the Motor Vehicle Tax for five years, paid to the Government. But the Opposite Parties inspite receiving the Notices failed to redress the grievances of the Complainant, displaying utter deficiency in service and unfair trade practice.
The Complainant felt cheated and intentionally defrauded by the Opposite Parties as the defective/faulty vehicle had been sold to her and the OP no.1, as the manufacturer of the vehicle and the OP no.2, as the Managing Director-cum-Chief Executive Officer and the OP no.3, as the dealer/seller and authorized service center of the vehicle and the OP no.4, being a Chief Executive Officer of the OP no.3, had all been liable.
The vehicle was under 24 months warranty from the date of registration or date of sale without any mileage limitation and was under further additional warranty of 12 months, from the expiry of 24 months, under the Star Care programme and therefore the OPs, reluctance to repair the faulty vehicle amounted to extreme deficiency in service and unfair trade practice.
The Complainant had always done the service of the vehicle at the authorized service center of OP no.3 and used to pay Rs.44,000/- as the Annual Maintenance Charge for the vehicle. That at present the gear-box of the vehicle had also stopped functioning which proved that the vehicle was a faulty/defective one. Finding no alternative, she lodged this instant complaint with necessary prayers.
The Opposite Parties no. 1 & 2 have appeared to contest the claim by filing written version wherein it had been stated that the Opposite Party no.2 though a Director of the Opposite Party No.1, had no contractual duty towards others, apart from the fiduciary duty towards the OP no.1/Complainant. It is further stated that the OP no.2, had not entered into any agreement in a personal capacity with the Complainant and therefore the OP no.2, should not be held personally liable and is supported by the principles from the judgement passed by the Hon’ble NCDRC in Amarjit Singh Vs. Gagandeep Singh & Ors. on 19/12/16.
It is further stated that with regard to the alleged incident, which occurred on 14/11/19, when the vehicle in question, in the middle of the road display mal-function of the ABS, Brake Assist System, Electronic Stability Programme, ESP trailer stabilization and the same endangered the life of the Complainant, that the above incident, had never been raised before any dealer or service center by the Complainant and without bringing the same to any dealer or service center, the Complainant had alleged that the OPs, had refused to repair the fault of the concerned vehicle. It is further stated that even if such incident had occurred the failure on the part of the Complainant to bring the said vehicle to the service center would not make the OPs liable, for such deficiency in service and in view of the judgement passed by the Hon’ble Supreme Court in Maruti Udyog Ltd. Vs. Sushil Kumar Gabgotra & Ors., no relief could be claimed by the Complainant. Hence, the Complainant had no cause of action.
Moreover, the Complainant had prayed for replacement of the concerned vehicle or refund of the total cost which was in contravention to the terms and conditions of the warranty, which had been agreed by the Complainant and in such a case the judgement passed by the Hon’ble Supreme Court in Maruti Udyog Ltd. Vs. Sushil Kumar Gabgotra & Ors., had laid down that the prayer was not legally invalid.
The Complainant’s complaint with regard to the vehicle, raised on 13/3/19 had been duly addressed and the same had been intimated vide e-mail dated 4/4/19.
That apart the OP no. 1 & 2 being manufacturer and OP no. 3 & 4 being dealer and service center, were of separate legal entity and were based on the principle of ‘principal to principal’ basis, for which reason one Party should not be held liable for the action of the other Party and had relied on the principle passed by the Hon’ble NCDRC in Mercedes Benz India (P) Ltd. Vs. Intercard (India) Ltd.
Moreover, the Complainant had been satisfied with the services, when the vehicle had been delivered to the Complainant on 04/04/19. But after receiving the concerned vehicle on 04/04/19, the Complainant had found that the defects of the vehicle was persisting, but no manufacturing defect had been alleged. Had the manufacturing defect been raised the same could not have been entertained in the light of the judgement passed by the Hon’ble NCDRC in Classic Automobiles Vs. Lila Nand Mishra & Anr., in absence of any expert evidence and in view of the above prayed for dismissal of the complaint.
The Opposite Party no. 3 & 4, also appeared to contest the claim by filing written version, wherein they have mostly denied and also stated that the vehicle being a premium vehicle having multiple features and sophisticated machine parts for which it was not possible to be repaired locally and had been referred to Guwahati Workshop and for which reason the same cannot be termed as deficiency in service. But, as the Complainant had insisted, on the vehicle being towed to Kolkata for which the extra mile had been charged and the Complainant without raising any objection or dissatisfaction had agreed to the same. With regard to the ABS, ESP issue, the Complainant had never reported to the Workshop of the OP no.3 with the issue. Moreover, mechanical problems would occur, but that does not mean that it was suffering from inherent defects. The OP no. 3 & 4 had further suggested for the ABS, ESP malfunction glowing on the cluster meter, to get the vehicle towed to the nearest dealer at Guwahati as per the ORA (on road assistance) policy, with no cost to the Complainant, if the car was under warranty. In this regard, e-mail dated 20/11/19, had also been sent, but till date the vehicle had not reported to any workshop. The Complainant had also been advised by the OPs that the vehicle being mechanical product and as such in the Indian climate and road conditions, issues would arise for which the vehicle needed to be produced before the OPs workshop, but the vehicle was never produced. Thus, the OPs cannot be levelled with deficiency in service or for that matter a faulty/defective vehicle had been supplied to the Complainant.
That apart at the time of delivery of the vehicle the Complainant had signed the delivery acknowledgement which contains 24 hours service booklet wherein it was specifically mentioned that the recovery vehicle would be sent to the nearest Mercedes Benz dealer and provisions had also been made to take the vehicle to the nearest Mercedes Benz dealer, which was absolutely free of cost. It was thereafter, prayed that the instant complaint be dismissed.
The Complainant and the Opposite Parties had been examined, cross-examined and discharged.
Decision with reasons
At the time of final hearing Ld. Advocate for the Complainant had submitted that even though the vehicle in question had been purchased on 12/03/18, the problems in the vehicle started immediately and for which the Complainant had to e-mail her grievances to the OP no.3, on 30/02/19. But the vehicle could not be repaired at Siliguri Workshop and the vehicle had to be towed to Kolkata Workshop for which the Complainant had to pay extra mile charges, for towing the vehicle to Kolkata instead of Guwahati. The vehicle had been returned on 04/04/19 but the defects of the vehicle had persisted and finally on 14/11/19, when the Complainant was driving the vehicle, the ABS, Brake Assist System, Electronic Stability Programme, stopped functioning in the middle of the road, which could have resulted the accident and the matter had been informed to OP no.3, who advised that the vehicle be driven below 20 km per hour, to her parking space. Inspite of purchasing the vehicle from an esteemed brand, the Complainant had been supplied the faulty/defective vehicle, instead of the brand new vehicle and since then the vehicle was lying idle, even though the Complainant had to pay regular instalments without even plying the vehicle on the road. Even after the mishap on 14/11/19, the OP no.3, demanded extra mile charges, for towing the faulty vehicle to Kolkata Workshop for repairing. Even after the services of the legal notice the OPs refused to redress the grievances of the Complainant, thus displaying utter deficiency in service and resorted to unfair trade practice. That apart the vehicle was under 24 months warranty from the date of registration or date of sale, without any mileage limitation and the vehicle in question had a further additional warranty of 12 months, after the expiry of 24 months warranty, under the Star Care programme. But the OPs refused to repair the faulty/defective vehicle, even though the Complainant always did service of the vehicle at the authorized service center of OP no.3, against payment of Rs.44000/- (Rupees forty-four thousand) only as annual maintenance charges for the vehicle. It was further prayed that the final order be passed in favour of the Complainant for the deficiency in service and unfair trade practices adopted by the Opposite Party.
The Ld. Advocate for the OP nos. 1 & 2, on the other hand, has countered the above argument by stating that the OP no.2 being the Director of OP no.1, cannot be held liable, in view of the principles passed by the Hon’ble NCDRC in Amarjit Singh Vs. Gagandeep Singh & Ors. on 19/12/16. It was further argued that the Complainant never raised the issue of the incident of 14/11/19, with any of the dealers or service centers and therefore the allegation of deficiency in service cannot be attributed to the OPs. Moreover, the OP nos. 1 & 2 cannot be held liable for the disturbances in the vehicle, as the same needs to be proved to be a manufacturing defect and to prove manufacturing defect an ex-parte evidence under (section 13(1)(C) of the Consumer protection Act, 1986 or section 38(2)(C) of the Consumer Protection Act, 2019 is necessary. Reliance has been laid in the judgement passed by the Hon’ble NCDRC in Hind Motors Vs. Balwindar Singh, Tata Motors Vs. Bhupinder Singh and Classic Automobiles Vs. Lila Nand Mishra & Ors. Furthermore, the relation between the OP no.1 and OP no.3 is not like an agent and principal, but based on ‘principal to principal’ basis and the same has been laid to rest, by the Hon’ble Supreme Court in Intercard (India) Ltd. Vs. Mercedes Benz India Pvt. Ltd. & Anr. and Tata Motors Ltd. Vs. Antonio Paulo Vaz & Anr. That apart, in the absence of the Complainant being unable to prove any allegation of deficiency in service, the Hon’ble Supreme Court in SGS India Vs. Dolphin International Ltd., had categorically laid that the burden of proof of deficiency was on the Complainant. It had been further argued that the prayer for replacement of vehicle or refund of the total cost of the concerned vehicle, was in contravention to the terms and conditions of the warranty, which had been accepted by the Complainant, at the time of purchase of the concerned vehicle and the Hon’ble Supreme Court in Maruti Udyog Ltd. Vs. Sushil Kumar Gabgotra & Ors., had clearly laid down that the relief should be given in accordance with the terms and conditions of the warranty. Lastly, it had been argued that this Commission did not have jurisdiction to adjudicate upon the compensation sought with respect to mental harassment, in view of the judgement passed by the Hon’ble NCDRC in Preeti Sharma & Ors. Vs. Yashoda Superspeciality Hospital & Ors.
Ld. Advocate for the OP nos. 3 & 4 at the time of final hearing had submitted that the services to the Complainant had been properly provided by the OP nos. 3 & 4 and the OP nos. 3 & 4 were not responsible for any inherent defect, if any. That apart the vehicle had already covered 28,773 kms and from this the drivability of the vehicle is well established. That apart the Complainant’s main allegation of deficiency in service is because of the extra mile charge for towing the vehicle to Kolkata workshop where her house was located and for this deficiency of service cannot be attributed as the brochure specially mentioned that free road side assistance could be provided to the nearest workshop only and in this case, it was the Guwahati Workshop. Moreover, the mechanical defects could arise from variety of reasons such as, moisture and road condition as well as the manner in which the vehicle is driven. As such the OP nos. 3 & 4, being service provider, had provided the service to the Complainant, as and when asked and therefore there was no deficiency in service and the OP nos. 3 & 4 should not be held liable for any manufacturing defect of the vehicle.
The facts of the case and after hearing the submissions made by the Ld. Advocate suggest that the Complainant’s allegation against the OP nos. 1 & 2 is of unfair trade practice and deficiency of service against OP nos. 3 & 4.
To start with, the Complainant has tried to establish that she had been delivered the vehicle in question which was defective and faulty ab inito, in as much as immediately after receipt of the vehicle, the vehicle was found to be suffering from numerous defects like under carriage noise from front in rough roads, all doors and – dash board noise, clattering engine noise (chi chi) noise, wiper blade not working properly and headlight adjustments improper. That apart, on 14/11/19 when the Complainant was driving the vehicle near Sevok More, Siliguri the Anti-Lock Braking System (ABS), Brake Assist System (BAS), Electronic Stability Progrmme (ESP) stopped functioning in the middle of the road and could have resulted in a terrible accident. The display board of the Odometer of the displayed “ABS, BAS, ESP trailer stabilization. The whole function, hill start assist and pre-safe are unavailable due to mal-function and it further display that the adapted brake lights may also have failed.” The above allegation has not been disputed by the OPs. Now the question that arises is, whether the Complainant has been able to establish that the faulty and defective vehicle had been supplied to her. From the initial defect of the vehicle in question, that is prior to 14/11/19, the defect does not appear to be a major one for which the same could be labeled as a manufacturing defect. As regards, the incident of 14/11/19 the Complainant also did not dispute that the vehicle in question, was not produced before any authorized service workshop. Hence this failure on the part of the Complainant also indicates that the fault detected on 14/11/19, was a minor one, which the Complainant could sort it out from another unauthorized service center. That apart till the date of cross-examination on 25/10/21 the vehicle in question had travelled about 28773 kms indicating that there was no major fault with the vehicle in question. Moreover, the Complainant also failed to provide any expert evidence, in order to establish her allegation of manufacturing defect in the vehicle in question, which is against the principles percolating from the judgement passed by the Hon’ble NCDRC in Classic Automobiles Vs. Lila Nand Mishra & Anr. Under the circumstance, the Complainant’s failure to establish the defect of manufacturing in the vehicle in question completely absolves the OP nos. 1 & 2 from the allegation labelled against them.
On the other hand, the OP no.2 by relying on the principles emanating from the judgement passed by the Hon’ble NCDRC in Amarjit Singh Vs. Gagandeep Singh & Ors. on 19/12/16, had been able to establish that the OP no.2 was an unnecessary party, to which the Complainant had failed to establish that the OP no.2 had been a necessary party. Under the circumstance, this point is also decided against the Complainant.
Now the deficiency in service against OP nos. 3 & 4 needs to be looked into. In this regard, the main grievance of the Complainant against the OP nos. 3 & 4 is that after the incident of 14/11/19 also the OP nos. 3 & 4, had insisted on extra mile charge from the Complainant, for towing the vehicle to the Kolkata Workshop. The OPs, on the other hand, had countered this argument that the Company’s on-road assistance (ORA) programme, was well-established and codified in the numerous brochures, that free towing of the vehicle would be to the nearest workshop and in this regard the nearest workshop would be at Guwahati and not Kolkata. But as the Complainant had insisted on Kolkata Workshop at the initial stage, because of her house being located at Kolkata and she had also borne the extra mile fare to Kolkata, her refusal to do so after the incident of 14/11/19, would not make it a deficiency in service, as she failed to avail the on-road assistance programme.
Hence from the above it transpires that the disappointment in the development of faults in the vehicle in question at such an early stage of purchase, might have been the main reason for lodging this case, but it should not be forgotten, that the contention raised by the OPs, that the vehicle in question is a mechanical product, created under the factory’s specification and many factors like the conditions of the road and the inadequacy of the driver’s skill in handling the sensitive nature of the vehicle in question, would also contribute to the development of faults, does appear to be just and acceptable, in the context of the present case.
Under the circumstance, the Complainant has failed to establish the allegations in her support against the OPs, following which the case is bound to fail.
It is therefore
ORDERED
That the case be and the same is dismissed on contest but without cost.
Copy of the judgement be handed over to the Parties free of cost.
