Haryana

Ambala

CC/276/2020

Dr RajatBudhiraja - Complainant(s)

Versus

Mohan Vehicles Pvt Ltd - Opp.Party(s)

J.S. Atri

13 Sep 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case no.         :     276 of 2020

                                                          Date of Institution           :     12.11.2020

                                                          Date of decision    :     13.09.2022.

Dr. Rajat Budhiraja son of Shri Rakesh Budhiraja, resident of House No.459-A, Village Ugala, Tehsil Barara, Distt. Ambala.

          ……. Complainant

                                                Versus

1. Mohan Vehicles Private Limited (HR 303) Tepla, Ambala Jagadhri Highway, Ambala through its Manager/authorized signatory.
2. KIA Motors, (GSTN No.37AAGCK-5872Q6ZG) NH-44, Sy. No.151-2, Eramanchi village, Penukonda (M), Anantapur District-515164, Andhra Pradesh.
3. KIA Motors, Corporate Office: 16th Floor, Two Horixon Center Golf Course Road, DLF Phase V, Sector-43, Gurugram-122002 Haryana Through its Authorized Signatory.

                                                                                  ….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.            

Shri Vinod Kumar Sharma, Member.

 

Present:       Shri Jasbir Singh Atri, Advocate, counsel for the complainant.

                     Shri Prem Sagar Sharma, Advocate, counsel for the OP No.1.

                   Shri Pushkar Sharma, Advocate, counsel for the OP No.2 and 3.

 

Order:        Smt. Neena Sandhu, President.

1.                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:-

(i)      To replace the defective car with a new one of the same model or to refund the cost of the car along with the registration and insurance charges etc. amounting to Rs.20,00,000/- alongwith upto date interest @ 1½% per month and future interest @ 1½ % per month along with Rs.2,38,426/- on account of insurance, registration and other amount charged by OP No.1 before delivery of the car.

ii) To pay Rs.20,00,000/- as compensation for the mental agony and physical harassment suffered by the complainant.  

iii) To pay Rs. 50,000/-, as litigation expenses.

                             Or

Grant any other relief which this Hon'ble Commission may deem fit” 

2.             Brief facts of this case are that on 04.12.2019 the complainant had purchased a car make and model SEL TOS D 1.5 6AT HTX PLUS having Engine No.04FAKM909809, Chassis No.MZBEU813MKN034416, for his personal use from OP No.1, on making payment of Rs.15,99,000/-. The said car was manufactured by the OPs No. 2 & 3. The said car was financed with HDFC Bank Ltd and the Registration Authority Barara has allotted Registration No. as HR 54E-4481 to the said car. Right from the very beginning of the delivery of the said car, it started creating trouble such like swear noise in the engine, failure of AC and steering problem etc. Since the complainant is a doctor by profession and had to attend his duties at Karnal area and suddenly the country started facing the problem of Covid-19 virus, so his duties and liabilities were increased under those circumstances. On 22.04.2020, the complainant felt unwanted sound in the car and talked to the Service Manager of OP No.1, who told the complainant that this not a big issue. However, suddenly on 23.04.2020 the sound of the engine increased and the complainant again called the Service Manager of OP No.1 and requested him to arrange some technician/mechanic as the sound of the engine was increased. Car was taken to the workshop of OP No.1 on 23.04.2020, after 2-3 hours a technician came and after checking the car, told the complainant that he is unable to do anything as “Engine of the car is damaged”. The complainant contacted the General Manager, Customer Care Service Manager of OP No.1. It was told to the complainant that since the engine of the car cannot be repaired, they will provide a new car after some time and it is only due to that reason, the complainant had to leave his car in the service centre of OP No.1. Thereafter the complainant contacted the official of OP No.1 to provide him the delivery of the new car of the same model in lieu of the present damaged car, but to no avail. On 10.06.2020, the complainant was informed by OP No.1 that a new engine has been replaced and fitted in the car and it was assured that it will not create any problem. Thereafter the complainant believing the version of OP No.1 to be trustworthy started plying his car, but during the rainy time, water started oozing from the wind screen inside the car, and it started a new problem of excess moisture inside and thereafter its AC started creating problems. The car was handed over to OP No.1 for repairs and the same was handed over to the complainant on 28.08.2020. However, still the car in question is not defect free. Under compelling circumstances, the complainant served a legal notice upon the OPs in the matter, but to no avail. By selling the defective car to the complainant, the OPs have committed deficiency in service and also adopted unfair trade practice. Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections with regard to jurisdiction, estoppal and cause of action etc.  On merits, while admitting factual matrix of the case, regarding sale of the said car to the complainant, it has been stated that the complainant is estopped from filing the present complaint by his own act and conduct. After purchasing the car on 4-12-2019, the complainant did not get first free service done from OP No.1 but got the first free service done on 02.01.2020 at the reading of 2786 KMs at M/s Aryaman Karnal, to his entire satisfaction and there was no such alleged deficiency or manufacturing defect in the car. The second free service was not got done by the complainant, which was accordingly cancelled. On 23.4.2020 the complainant contacted OP No.1 with the complaint of noise in the car at the reading of 12536 KMs. But due to COVID-19, the outlet was closed and nothing could be done and checked. The job card was opened on 21-5-2020 and the noise was noticed due to the engine problem and accordingly the complete engine was changed being in warranty period, free of cost and the car was delivered to the complainant on 10-6-2020. The complainant received the delivery after getting fully satisfied and he also gave satisfaction note to this effect. Thereafter the car in question came up for general checking on 29-6-2020 at the reading of 14750 KMs i.e. after plying for more than 2000 KMs though the complainant was to get the service done after plying it for 1000 KMs. After service, the car was delivered to the complainant and he gave satisfaction note to this effect on 29-6-2020 as he was fully satisfied with the services rendered. Thereafter the car came up for third free service on 14-7-2020 at the reading of 15912 KMs and on 14-7-2020 also the complainant was fully satisfied with the services and gave satisfaction note to this effect. The complainant had taken the car on 28-9-2020 at M/s Aryaman Karnal with the complaint of AC not working at the reading of 19968 KMs, which was done at Karnal by M/s Aryaman, free of cost, being within warranty period. The complainant pointed out the starting problem in the engine, but there was no such problem noticed during checking and service. The delivery of the car was taken by the complainant on 28-8-2020 after getting fully satisfied and the complainant gave the satisfaction note to this effect at Karnal also. The car in question of the complainant was picked up for paid service on the request of the complainant on 26-9-2020 at 22170 KMs at M/s Aryaman, Karnal. After service the car in question was dropped at the work place of the complainant, but as the complainant was busy in OT being Doctor, so his colleague received the delivery and gave the satisfaction note to this effect. Thereafter also the complainant got paid service of his car on 11-12-2020 from M/s Aryaman Auto Karnal after running the car for 30078 KMs and received the car after service getting fully satisfied. The car in question is being plied by the complainant without any problem and the same is running smoothly and there is no defect of any kind what to say of manufacturing defect therein. The AC pipe; rear seat APP updation cannot be considered as manufacturing defect. Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint with costs.
4.           Upon notice, OPs No.2 and 3 appeared and filed written version and raised preliminary objections with regard to not come with clean hands and suppressed the material facts etc.  On merits, while admitting the factual matrix of the case, with regard to sale of the car in question by OP No.1 to the complainant and that the said car has been manufactured by OPs No.2 and 3, it has been stated that the complainant had never an issue with the after sale services provided by the OPs, as he himself gave Satisfactory Notes after every visit. The said car was duly delivered to the complainant on 11.12.2019. The free service of the said car was done on 02.01.2020. On 23.04.2020 the complainant called the Service Manager of OP No.1 for abnormal engine noise,  as a result whereof, ultimately,  replacement of Sub-Engine Assy was carried out and the complainant after being completely satisfied with the services of the workshop, also signed a satisfaction note dated 10.06.2020, Annexure-2. Subsequently, the car was delivered to the complainant on 11.06.2020 and eventually for further confirmation as a standard service protocol on 29.06.2020 the car was again called at the workshop for general check-up after the Engine replacement to which the complainant had no issues or dissatisfaction. On 14.07.2020, the complainant was also provided with third free service, wherein complainant again did not complain about any kind of noise coming from engine of the said car. On 28.08.2020, the complainant reported problem in Air Conditioning (AC) of the said car. Since, the complainant was in Karnal, the said car was taken to the Aryaman Kia, Karnal service station, wherein the said AC problem was resolved on the same day and the said car was delivered back to the complainant. Despite best after sales services being provided to the complainant, to the utter dismay and shock of OPs No.2 and 3, a legal notice was served by the complainant.  Rest of the averments of the complainant were denied by the OP No.2 and 3 and prayed for dismissal of the present complaint with costs.
5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-26 and closed the evidence on behalf of the complainant. Learned counsel for OP No.1 tendered affidavit of Rohit Khanna, Director of OP No.1 company-M/s Mohan Vehicles Pvt. Ltd., 13/40, KM Store, Tepla Auto Hub, Ambala Jagadhri Road, Ambala Cantt. as Annexure OP-A  alongwith documents Annexure R-12 to R-14 and closed evidence on behalf of OP No.1. Learned counsel for the OPs No.2 and 3 tendered affidavit of Shri Ashish Chauhan, Principal Counsel (Legal) with Kia India Pvt. Ltd. (earlier known as Kia Motors India Pvt. Ltd.) having its registered office at NH-44, Sy. No.151-2, Erramanchi, Penukonda Mandal, Anantapur, Andhra Pradesh-515164, as Annexure RW1/A along with documents as Annexure R-1 to R-11 and closed evidence on behalf of OP No.2 and 3.

6.                We have heard the learned counsel for the parties and carefully gone through the case file and also gone through the written arguments filed by the learned counsel for the OPs No.2 and 3.

7.                Learned counsel for the complainant submitted that by selling the defective car in question, which was suffering from inherent manufacturing defects viz its engine, A.C. etc., the OPs were under obligation to replace the said car with a new one or to refund the price thereof, yet, by not doing so, they are not only deficient in providing services but are also indulged into unfair trade practice. 

8.                 On the contrary, the learned counsel for the OPs submitted that since the defects reported by the complainant in the car in question was fully rectified by replacing the engine with a new one and also by replacing the defective parts of the A.C. thereof, where after, the complainant himself gave satisfaction notes to that effect, as such, he is neither entitled for replacement of the car in question nor refund of the price thereof.  In support of his version the learned counsel for the OPs No.2 and 3 has placed reliance on the judgement dated 06.08.2012, passed by the Hon’ble National Commission, New Delhi in the case of Kumari Namrata Singh Vs. Manager Indus & Anr., wherein it has been held that on the basis of repairing of the vehicle on few occasion, it cannot be said that the vehicle was having manufacturing defect, especially when there is no expert opinion in support of the allegation that the vehicle was having some manufacturing defect. The District Forum has committed an error in giving such finding only on the basis of few repairs. Such finding is not sustainable and is liable to be set aside.

9.       The moot question which falls for consideration in this case is, as to whether, the  complainant is entitled for replacement of new car or refund of the price thereof, as sought for by him or not? It may be stated here that it is not in dispute that the engine of the car in question was found defective, where after, it was replaced by the OPs within a short span of purchase of the said car. It is also coming out from the record that the Air Condition of the car in question was also found defective, as a result whereof, various parts viz. pipe etc. were also changed and the same was made operational. Satisfaction notes dated 26.09.2020, 19.10.2020 and 11.12.2020, Annexure-3 (colly), to this effect have also been submitted by the complainant to the OPs. Though, the learned counsel for the complainant during arguments contended that despite replacement of the new engine it is still defective and also that the AC is not fully operational, yet, no evidence in that regard has been placed on record by the complainant and also no request has been made by the complainant/his counsel, to get the said car inspected from the experts, to substantiate this stand. In our considered opinion, to prove his case that even after replacement of defective engine with a new one, the engine is not working properly or that the AC is also not working after replacement of the defective parts and or that there is any manufacturing defect in the said car, the complainant is under obligation to place on record some convincing and cogent evidence in that regard, which he has failed. Thus, under these circumstances, the demand raised by the complainant for replacement of the car or refund of its price is untenable. During the warranty period, the OPs are under obligation, only to replace the defective parts and not to replace the entire car, unless it is proved that the entire car is beyond use, which is not so in the case of the complainant. Our this view finds support from the ratio of law laid down by the Hon’ble Supreme Court of India in Maruti Udyog Ltd. Vs Susheel Kumar Gabgotra and another (2006) 4 SCC 644, wherein it was held 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.

10.              However, this fact cannot be ignored that the complainant has contended that still his car is suffering from some defect (s) related to engine and AC (through no evidence has been placed on record), yet, in the interest of justice, if the OPs are directed to rectify the defect (s) if any related to engine or AC of the car in question, free of costs, it shall meet ends of justice. It may be stated here that the complainant had taken his car, for its repair, for number of times to the workshop of the OPs, which remained landed there for more than a month, as its engine and air conditioner were found defective, which were admittedly replaced and made operational. However, one can imagine the plight of the complainant, who had bought the car for his comfort, but on the other hand, was made to pay visits to the workshop of the OPs for defects rectification, referred to above, after few months of its purchase.  It is also not out of place to mention here that the complainant is a Doctor by profession and at the relevant time, it was a peak of COVID-19, for which he was required to take care of the COVID patients and was in dire need of the car to visit the hospital, now and then. There is nothing on record that during the period when the car in question was landed with the workshop of the OPs for repair, any substitute car was provided to the complainant. Thus, on account of the act and conduct of the OPs, the complainant was deprived of the use of car, in those tough days, and would have definitely suffered financial loss, mental agony and physical harassment for which he needs to be suitably compensated.  Hence, the OP No.1 being the dealer and the OPs No.2 and 3 being the manufacturer are liable to compensate the complainant adequately and are also liable to pay the litigation expenses.

11.               In view of the aforesaid discussion, we hereby partly allow the present complaint and direct the OPs, jointly and severally, in the following manner:-

                   (i) To rectify the defect (s) if any related to the engine and AC of      the car in question, free of costs.

                   (ii) To pay Rs.1 lac as compensation for financial loss, mental     agony and physical harassment suffered by the complainant.

                   (iii) To pay Rs.5,000/- as litigation costs.

                  The OPs are further directed to comply with the order, within the period of 45 days from the date of receipt of the certified copy of this order, failing which, they shall pay the aforesaid amounts to the complainant, besides compliance of direction given in para No.11 (i), alongwith interest @6% p.a. from the date of filing of this complaint i.e. 12.11.2020 till realization. Certified copy of the order be supplied to the parties concerned, free of costs, as permissible under rules.  File be annexed and consigned to the record room.

Announced on: 13.09.2022.

 

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

              Member                         Member                       President