BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.77 of 2015

Date of Instt. 02.03.2015

Date of Decision: 11.07.2017

S. Baldev Singh Bhogal aged about 58 years son of S. Gian Singh Bhogal C/o Bhogal Mechanical Works, VPO Rurka Kalan, Tehsil Phillaur, District Jalandhar.

..........Complainant

Versus

1. M/s B.D. Motors, G.T. Road, Lamba Pind Bye Pass, Jalandhar City through its owner/partner/director/office head.

2. M/s Premier Ltd., Mumbai Pune Road, Chinchwad, Pune-19 through its Director/Office Head.

3. M/s Gagan Premier Motor Barage, GT Road, Bye Pass, Near Transport Nagar, Jalandhar Punjab, through its office Head/Authorized Officer.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Sh. Parminder Sharma (Member)

Present: Sh. Manuj Aggarwal, Adv. Counsel for complainant.

OP No.1 exparte.

Mrs. Anita Sharma, Adv Counsel for OP No.2.

Sh. JS Sarish, Adv. Counsel for OP No.3.

Order

Karnail Singh (President)

1. This complaint filed by complainant, wherein alleged that the OP No.2 is doing the business through the OP No.1 for marketing and selling of its product and the OP No.3 is also its authorized service centre and under the control of OP No.2. That the complainant purchased a car Premier Rio Model LX, product of the OP No.2, engine No.PLDTX01080X, Chasis No.X9000826 type of Body SUV, model 2011 from OP No.1 vide invoice No.51 dated 17.08.2011 of Rs.6,02,000/-. The registration of the car is PB-37-G-5847. That before the purchase of the above said car, OP No.1 assured to the complainant with regard to the quality and good performance of the above said vehicle. The OP No.1 also assured to the complainant that the OP No.2 is the top company in the field of Diesel Cars and the best thing is that the authorized service centre of the said company is through-out India.

2. That the complainant purchased the said vehicle for his personal use. From the very beginning the said vehicle was not in a working order and its engine makes noise, vibration in cabin, Hard Gears, Clutches noise. Even from the very beginning, the OP assured to complainant that the mileage of this vehicle is the best in all cars of this segment. OP assured that after the few services mileage of the car becomes 23/24 KM per litter. That the complainant from the very beginning, after the purchase of the said car, reported to the OP about the increase engine noise, when car runs above 80 KM per hour. Complainant made number of complaints to this effect to OPs and also gave the vehicle to OP to cure this defect but proved futile. The complainant brought into notice of the above said problems to authorized service station of the OP No.2 and brought into knowledge of OPs engineer Mr. Bhupinder Singh. Complainant every time brought the said problem to the notice of engineers and person of authorized service station of OP No.2 and they duly mentioned the said problems in the Job Sheet prepared by them and copies of the said Job Sheets are duly in possession of the OP No.2 authorized service station to prove the version of complainant. Even complainant vide his letter dated 06.10.2012 put into knowledge of all the above said problems to OPs and one Mr. Balbir Singh, Engineer, Punjab Zone/Range duly received the said letter from the complainant on behalf of the OP No.2. Even the complainant through telephonic calls and through email used to report the said complaint to complaint center of OP No.1. All the emails are into record of complainant. That complainant even used to talk with Mr. Venkat, Service Engineer, Head, (India) Pune and Mr. AP Goel, GM of OP No.2. The complainant has telephonic recording of the conversation with them and also have the emails sent to them qua the above said problems. That complainant every time in his complaints made to OP through mail, telephonic conversation or through job sheets, mentioned about the above said problems to OPs. Even OPs number of times tried to cure the above said problems but failed and every time OPs told the complainant that you OP No.1 and 3 in writing forwarded the complaint to the head office and they will cure the problem of the car of the complainant. The OP No.2 in order to give a lollypop to complainant, extended vehicle warranty of complainant from 3 years to 3 and half years vide their letter dated 24.05.2013.

3. That complainant vide his email dated 23.01.2014 clearly mentioned all problems faced by complainant in relation to the above said car and also mentioned this fact that the material changed by people of authorized service station of OP under warranty were not mentioned by them on job card. Complainant got inspected the said vehicle from experts and they told the complainant that the said vehicle engine has a manufacturing defect and also is having a design defect and is not repairable and even they told the complainant that the said problems are being faced by all the owners of the same model car. The complainant purchased the said car of his comfort and his convenience but after the purchase of the said car, complainant lost his comfort and peace. Here it is necessary to mention that while driving the said car, it is not possible to talk with any co-passenger due to the huge noise makes due to the huge vibration in cabin. Even complainant does not sit conveniently due to the cabin vibration. The complainant approached to the OP No.2 and 3 and requested them to remove the above said defects of the vehicle or to replace the vehicle but they refused to do so. Even OP No.1 do not run from his responsibility on the ground that now he is not the dealer of the OP No.2. After frustration of the above said things, complainant sent the legal notice to the OPs on 21.01.2015, but all in vain and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to replace the above said car with any other new car of the same price or refund the sale price of the said car and also pay Rs.1,00,000/- as harassment incurred by the complainant and Rs.11,000/- as cost and litigation expenses.

4. Notice of the complaint was given to the OPs but despite service, OP No.1 did not come present and ultimately OP No.1 was proceeded against exparte.

5. OP No.2 filed written reply and contested the complaint by taking numerous preliminary objections, wherein alleged that the complaint of the complainant is misconceived and complainant has no cause of action therefore, complaint is liable to be dismissed with compensatory costs and further alleged that the complainant has failed to produce on record any documentary evidence to support the allegation of the complainant that the vehicle allegedly purchased by the complainant is having any manufacturing defects as alleged by the complainant. The present complaint is an abuse of the process of law and the complainant is trying to achieve unlawful gains by filing this complaint and even the complainant has not mentioned the details of the alleged manufacturing defects in the vehicle in the complaint and on this ground the complaint is required to be rejected. On merits, it is admitted that the complainant purchased the car, manufactured by the OP No.2 but remaining allegations as made in the complaint are categorically denied. OP No.3 filed its separate written reply, wherein stated that the complainant purchased the vehicle but OP No.3 is not responsible for any fault or defect in the vehicle and further submitted that he performed the service of the Rio Vehicles under the guaranty of company since March 2013. He was repairing the vehicle under the instruction of Registered Engineer Mr. Balbir Singh of the company and now he left the company. He had stopped the work of the company in December, 2014, due to non availability of the parts and loss of money. He had repaired the vehicle of Baldev Singh during guaranty period and he kept the record under his custody which is enclosed with this application.

6. In order to prove the case of the complainant, complainant himself tendered into evidence affidavit Ex.CA alongwith documents Ex. C1 to Ex.C32 and closed the evidence.

7. Similarly, counsel for the OP No.2 tendered into evidence affidavits Ex.OP2/A and Ex.OP2/B alongwith some documents Ex.OP2/1 and Ex.OP2/2 and closed the evidence and then OP No.3 tendered into evidence his own affidavit Ex.OP3/A alongwith documents Ex.OP3/1 to Ex.OP3/26 and closed the evidence.

8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

9. In order to refute the claim of the complainant, contesting party OP No.2, who is manufacturing of the vehicle took a plea that the complainant has not brought on the file any documentary evidence to prove that there is any manufacturing defect in the vehicle and as such the complainant is not entitled for the relief and moreover, the OP No.2 has examined Hemant G. Samant whose affidavit is Ex.OP2/A and through his affidavit he reiterated the entire facts as alleged in the written reply. Apart from that the OP No.2 has also examined Mr. YR Ingale, Automobile Engineer, who submitted his affidavit Ex.OP2/B, whereby deposed that he has 23 years experience in the field of Automobiles Engineers and he is working with Premier Ltd since 28.10.2004 and further deposed that he personally checked the vehicle of the complainant at the garage of the OP No.3 and had gone through all the job cards of the present vehicle and on perusal of all the record, it can be definitely said that there is no manufacturing defect in the present vehicle. Apart from that he has also refuted the allegations of the complainant by further deposing in his affidavit.

10. In this complaint OP No.3 has not contested the complaint because he is the incharge of the service centre and he simply admitted that the vehicle was brought for service in his service station so many times and also brought on the record in regard to the said service which is Ex.OP3/1 to Ex.OP3/26.

11. Now we have to analyze the allegation of the complainant whether there is any manufacturing defect in the vehicle of the complainant i.e. car, so purchased by the complainant on 17.08.2011 for Rs.6,02,000/- and its invoice/bill is Ex.C1 and as per averments made in the complaint, there is a manufacturing defect in the vehicle and also having design defect and there is a noise from the gear as well as cabin vibration and it is difficult to travel in the said vehicle, to gave a strength to above averments, the complainant has brought on the file affidavit Ex.CW1/A of Bikramdeep Singh, Mechanic, wherein he categorically stated that he inspected the car Premier Rio of the complainant and found that all cars of the said model face the vibration and noise in the car, as per his inspection, he further found that there is a manufacturing defect and also having a design defect in the said model cars. The propeller shaft is not installed in its correct place and due to that it creates vibration in the vehicle. The propeller shaft needs modification in these design cars. Here, it is necessary to disclose that where the engine and axles are separated from each other, as on four wheel drive and rear wheel drive vehicles, it is the propeller shaft that serves to transmit the drive force generated by the engine to the axles. The longer the shaft, the more liable it is to bend, and bending is further promoted when rotation is applied causing vibrations and resulting in an increase in noise. Due to this, it always becomes unbalanced. The reason of the said problem as per his opinion on these types of car due to weak engine mounting and due to weak engine mounting, the engine starting creates vibration and its unbalanced the installation of the engine. When these problems of unbalanced of engine mounting and defect arose in propeller shaft, it creates lot of noise and vibration and one cannot sit in the cabin in the said car due to the said vibration and noise. Now due to the said vibration and noise it is not possible to talk with any co-passenger, even the said defects effect to the gear box of the car and it becomes hard due to unbalance. The said defects are not repairable and as per his opinion it is a manufacturing defect and it is a possibility the company peoples are in knowledge of the said defect and due to the said reason, they stopped manufacturing new cars of the said model.

12. No doubt to counter the affidavit of the mechanic of the complainant. The OP No.2 also examined engineer Mr. YR Ingale by filing affidavit Ex.OP2/B but the affidavit of the Mr. YR Ingale is not supported by any document, whereas the affidavit of the engineer of the complainant is supported by some documents which are not written by the complainant rather the employee of the OP No.2 which is Ex.C10, wrote by Amrik Singh, Mechanic of the OP No.2 to the incharge of the company Mr. AP Goel, whereby informed the defect in the car and further Amrik Singh wrote an other letter to Mr. AP Goel, which is Ex.C12 and further Amrik Singh wrote an other letter to Mr. AP Goel, which are Ex.C16 and Ex.C18, whereby reported the problem with regard to shaft vibration in cabin due to replaced crosses but despite that letters, the officer of the OP No.2 company i.e. Mr. AP Goel did not bother to take any action. Apart from that Amrik Singh again asked to Mr. Venktesh, Officer of the company to solve the problem in regard to noise from clutch or gear of the car of the company, vide letters Ex.C7 and Ex.C8. Apart from that the complainant himself sent emails dated 09.11.2012 Ex.C3, dated 30.12.2012 Ex.C4, dated 29.10.2013 Ex.C13 and wrote a letter on 06.10.2012 Ex.C5 and further complainant brought on file certain job cards without date Ex.C6 and Job card dated 16.10.2013 Ex.C2, job card dated 28.09.2013 Ex.C9, job card dated 02.07.2014 Ex.C19, job card dated 26.04.2014 Ex.C21, job card dated 18.08.2014 Ex.C22 and job card dated 22.09.2014 Ex.C23, if we analyze the entire documents as well as evidence of the mechanic, adduced by the complainant then we can say without any hesitation that the complainant is able to establish that there is a manufacturing defect and moreover as per the version of the mechanic Bikramdeep Singh, who in his affidavit Ex.CW1/A categorically stated that the OP No.2 has stopped manufacturing new car of the said model. So, it means that there is some mechanical defect and due to that reason, the OP No.2 has stopped the manufacturing of the cars and moreover, the version of the complainant is also fortified, by the documents placed on the file by the OP No.3 i.e. Ex. OP3/1, Ex.OP3/4, Ex.OP3/6, Ex.OP3/11, Ex.OP3/13, Ex.OP3/16, Ex.OP3/21 and Ex.OP3/24, these documents also shows that there is a vibration and noise in the vehicle in question. No doubt the counsel for the OP for the OP No.2 also referred three judgments, cited in IV (2006) CPJ 257 (NC) “R. Baskar Vs. D.N. Udani & Others, second judgment is cited in VIII (2007) CPJ 395 “Tarsem Kumar Garg Vs. Mahindra and Mahindra Ltd and Another” and third judgment is cited in IV (2009) CPJ 144 (NC) “Maruti Udyog Ltd. Vs. Casino Dias and Another” and we have gone through these judgments and find that the facts of these judgments are not applicable in this case. So, from all angles, the case of the complainant is established and therefore we find that the complainant is entitled for the relief as claimed.

13. As an upshot of our above detailed discussion, the complaint of the complainant is partly accepted and OP No.2/Manufacturer is directed to return the price of the vehicle i.e. Rs.6,02,000/- with interest @ 9% per annum from the date of purchase of the car i.e. 17.08.2011 till realization and OP No.2 is further directed to pay compensation for harassment to the complainant to the tune of Rs.20,000/- and litigation expenses of Rs.5000/-. The old car is ordered to return back to OP No.2. The entire compliance be made within one month from the date of receipt of the copy of order. Complaint could not be decided within stipulated time frame due to rush of work.

14. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

11.07.2017 Member President