Haryana

Panchkula

CC/134/2015

PARDEEP KUMAR. - Complainant(s)

Versus

M/S BERKELEY NISSAN & ORS. - Opp.Party(s)

RAJESH VERMA

14 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.                                                                  

Consumer Complaint No	:	134 of 2015
Date of Institution	:	24.07.2015
Date of Decision	:	14.06.2016

                                                             

Pardeep Kumar s/o Sh.Raj Kumar, aged about 37 years, R/o H.No.228, Phase 2, Ram Darbar, Chandigarh and permanent R/o H.No.495, Sector 9, Panchkula.

                                                                                      ….Complainant.

Versus

 

1. M/s Berkeley Nissan (Berk Motor Car LLP), 68, Industrial Area, Phase-1, Panchkula through its Proprietor/Partner.
2. Nissan Motors India Private Ltd., Plot No.1A, SIPCAT Industrial Area, Mattur Post, Oragadan, Sriperumbudur Taluk, Kanchapuram District, Kanchapuram, District Tamilnadu-602105, India through its Managing Director/authorized person.
3. Hind Nissan, Hind Motors India Limited, Plot No.9, Industrial Area, Phase-1, Chandigarh through its Managing Director/authorized person.

                                                                                      ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor , Member.

               Mr.S.P.Attri, Member.

 

For the Parties:     Mr.Rajesh Verma, Adv., for the complainant. 

                             Mr.Sandeep Jasuja, Adv., for the Op No.1.

                             Mr.Chetan Gupta, Adv., for the Op No.2.

Mr.Karun Grover, Adv., for the Op No.3.

 

ORDER

(Dharam Pal, President)

 

1.                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that he purchased Nissan Terrando XVD Car from Op No.1 for a sum of Rs.11,00,128/- vide invoice dated 20.12.2013 and also got extended warranty period by paying a sum of Rs.12,600/- vide cash receipt dated 28.11.2014. The vehicle was financed by SBI, Industrial Area, Industrial Estate, Chandigarh  and the monthly installment is approximately Rs.30,000/-.  Thereafter the complainant noticed that the vehicle was not giving satisfactory performance as promised by the Ops due to inherent manufacturing defect because within six months of its purchase it started giving problem such as “Noise in the engine and stops in between abruptly and low average”.  The vehicle was brought to the OP No.1 for rectification of the defects but its technical official reveals that there is manufacturing defect in the engine and the vehicle remained with OP No.1 for about two months. After two months the vehicle was returned to the complainant after repair work with assurance that the defect has been rectified by overhauling the engine followed by replacement of necessary parts. In the month of October, 2014 the vehicle started creating same problems but the OP No.1 after minor adjustment repaired the vehicle and returned the same to the complainant. The false claims of the rectification of defects fell flat  as on 20.04.2015 when the complainant alongwith his family was coming from Karnal to Chandigarh then all of a sudden the car broke down at Ambala National Highway. On the advice of Op No.1, the complainant took the vehicle to the workshop of OP No.3 on 20.04.2015 at night and on inspection there was problem of overheating and starting. On visiting the Op No.3, on 02.07.2015, the complainant astonished to see that the engine of the vehicle was dismantled and the parts thereof were lying in the dicky and the vehicle was standing on jacks. However, the Op No.3 told that the repair work is being carried out as the vehicle falls within the warranty period. Thereafter the complainant made many requests and also sent emails to the Ops to honour the terms and conditions of the warranty period and extended warranty period but to no avail. Though, the engineer of the OP No.3 inspected the vehicle and asked the complainant to collect the same within a week. Thereafter the complainant visited the OP No.3 to collect the vehicle but it did not repair the same on the excuse that the parts are not available and as and when it is received from the manufacturer the vehicle would be repaired. He has been deprived of the use of the vehicle as it was lying with the OP No.3 since 20.04.2015 till the filing of present complaint.  The Ops have sold defective product and faulty vehicle with inherent defect to the complainant as it started giving problem soon after its purchase, therefore, they are deficient in providing service to the complainant which leads to mental agony and harassment also to him. In evidence the complainant has tendered affidavit and documents Annexure CA, Annexure C1 to Annexure C6, Annexure C6A to Annexure C12.

2.                          The Ops contested the complaint of the complainant by filing separate replies. OP No.1 in its reply has submitted that on 20.12.2013 the complainant had purchased the vehicle in question and on 21.04.2014 he approached him for getting first free service but he did not lodge any complaint regarding the defect. On 21.08.2014, he lodged the complaint regarding noise in the engine and stopping the vehicle abruptly. During checking it was found that some parts of the engine were defective and as such those parts were requisitioned from the manufacturer (Op No.2), on receipt of the parts the valve of head of engine, timing belt, shaft assembly and the pulley was replaced under warranty without charging any amount. On 01.10.2014 the vehicle was delivered to the complainant after its repair. On 11.03.2015 the complainant again approached the OP No.1 for noise in the break and touching on bumper. Thereafter the complainant received the vehicle after signing satisfactory note on 12.03.2015. The defect disclosed by the complainant was rectified and it never occurred again thereafter, it is clear that there was no inherent defect in the vehicle. The OP No.1 on receipt of the parts had repaired the vehicle immediately without any delay and it had never advised the complainant to take the vehicle to OP No.3. The complainant has not suffered any loss as there was no inherent defect in the vehicle.

3.                          Op No.2 in its reply has submitted that it has been dragged in the present case in order to harm its reputation and goodwill. This Forum has no pecuniary jurisdiction to entertain the present complaint. The OP No.2 has no role in the present matter directly or indirectly as the transactions and correspondence have taken place between OP No.1 & OP No.3 being independent and autonomous bodies.  The complainant has not taken any expert opinion to prove the allegations of manufacturing defect. He was never compelled/forced or misrepresented about any of the features of the vehicle in question. The relationship of the Op No.2 with the Ops No.1 & 3 is on principal to principal basis.  

4.                          OP No.3 in its reply has submitted that the vehicle was taken to its workshop on 21.04.2015 with complained overheating and starting problem and at that time the vehicle had run 31572 Kms. The vehicle was under warranty period, therefore, no estimate required and the complainant was informed about the same on 22.04.2015. On 21.09.2015 he was intimated to take the delivery of the vehicle, as necessary repair and replacement of the parts had done, but the complainant did not take the delivery. Thereafter the complainant was served with a reminder to take the delivery of the vehicle but to no avail. The report made by the Local Commissioner reveals that the vehicle was in order and found in running condition at the time of inspection. Since the vehicle was under warranty, therefore only labour charges to the tune of Rs.1526.46 had been added and the same amount was required to be paid by the complainant at the time of taking the delivery of the vehicle.  The Op No.3 had never asked the complainant to take the vehicle within a week rather he was very well aware of the fact that some parts were required to be replaced and it would be received from the manufacturer.  The complainant was hardly interested in the repair and replacement of the parts and he kept on pursuing the matter with manufacturer for the replacement of the vehicle.  All the Ops have controverted the other allegations made in the complaint and submitted that there is no deficiency in service on their part. Lastly, prayer for the dismissal of the complaint has been made. In evidence the Ops have tendered affidavits and documents Annexure R1/A, Annexure R1/1 to Annexure R1/2, Annexure R2/1 to Annexure R2/3 and R3/1 to Annexure R3/3.

5.                          The complainant has filed the replications to the replies filed by the Ops wherein he reasserted the allegations made in the complaint and controverted the allegations made therein by them.

6.                          We have heard the learned counsel for the parties and have also perused the record as well as written arguments filed by the counsel for the Op No.2.

7.                          The facts about sale of the car in question i.e. Nissan Terrando XVD car bearing registered No.CH01AV 8904 to the complainant on 20.12.2013 having warranty and extended warranty.

8.                          The main contention of the complainant is that the vehicle in question was not giving satisfactory performance due to inherent manufacturing defect, as a result there was problem of noise in the engine and stops in between abruptly and low average. It is contended that the vehicle was brought to the OP No.1 for rectification of the defects but its technical official reveals that there is manufacturing defect in the engine and the vehicle remained with OP No.1 for about two months. After two months the vehicle was returned to the complainant after repair work with assurance that the defect has been rectified by overhauling the engine followed by replacement of necessary parts. In the month of October, 2014 the vehicle started creating same problems but the OP No.1 after minor adjustment repaired the vehicle and returned the same to the complainant. The false claims of the rectification of defects fell flat as on 20.04.2015 when the complainant alongwith his family was coming from Karnal to Chandigarh then all of a sudden the car broke down at Ambala National Highway. The OP No.1 advised the complainant either to take the vehicle to Chandigarh or to a nearby agency on the Jagadhari road and it refused to entertain the same. The complainant took the vehicle to the workshop of OP No.3 on 20.04.2015 at night and on inspection there was problem of overheating and starting.  On visiting the Op No.3, on 02.07.2015, the complainant astonished to see that the engine of the vehicle was dismantled and the parts thereof were lying in the dicky and the vehicle was standing on jacks. However, the Op No.3 told that the repair work is being carried out as the vehicle falls within the warranty period. Thereafter the complainant made many requests and also sent emails to the Ops to honour the terms and conditions of the warranty period and extended warranty period  but to no avail. Though, the engineer of the OP No.3 inspected the vehicle and asked the complainant to collect the same within a week. Thereafter the complainant visited the OP No.3 to collect the vehicle but it did not repair the same on the excuse that the parts are not available and as and when it received from the manufacturer the vehicle would be repaired. He has been deprived of the use of the vehicle as it is lying with the OP No.3 since 20.04.2015 till date of filing of complaint. 

9.                          On the other hand, the stand taken by the Op No.1 is that on 20.12.2013 the complainant had purchased the vehicle in question and on 21.04.2014 he approached it for getting first free service but he did not lodge any complaint regarding the defect. On 21.08.2014, he lodged the complaint regarding noise in the engine and stopping the vehicle abruptly. During checking it was found that some parts of the engine were defective and the same were replaced under warranty without charging any amount. On 01.10.2014 the vehicle was delivered to the complainant after its repair. On 11.03.2015 the complainant again approached the OP No.1 for noise in the break and touching on bumper. Thereafter the complainant received the vehicle after signing satisfactory note on 12.03.2015. The defect disclosed by the complainant was rectified and it never occurred again therefore, it is clear that there was no inherent defect in the vehicle.   The OP No.1 on receipt of the parts had repaired the vehicle immediately without any delay and it had never advised the complainant to take the vehicle to OP No.3.

10.                        The Op No.2 has taken the stand that the OP No.2 has no role in the present matter directly or indirectly as the transactions and correspondence have taken place between OP No.1 & OP No.3 being independent and autonomous bodies.  The complainant has not taken any expert opinion to prove the allegations of manufacturing defect. He was never compelled/forced or misrepresented about any of the features of the vehicle in question. The relationship of the Op No.2 with the Ops No.1 & 3 is on principal to principal basis. 

11.                        The Op No.3 in its reply has taken its stand that the vehicle was taken to its workshop on 21.04.2015 with complaint of overheating and starting problem and at that time the vehicle had run 31572 Kms. The vehicle was under warranty period, therefore, no estimate required and the complainant was informed about the same on 22.04.2015. On 21.09.2015 he was intimated to take the delivery of the vehicle, as necessary repair and replacement of the parts had done, but the complainant did not take the delivery. Since the vehicle was under warranty, therefore only labour charges to the tune of Rs.1526.46 had been added and the same amount was required to be paid by the complainant at the time of taking the delivery of the vehicle.

12.                        It is worthwhile to note that this Forum vide order dated 06.01.2016 referred the vehicle in question to the Director, PEC University of Technology, Chandigarh to appoint the Technical Engineer to inspect the car of the complainant for the defect mentioned in the complaint for which the fee was to be paid by the complainant.

13.                        Thereafter, the Expert Opinion/report from the office of Prof., Mech. Engg. Deptt., PEC University of Technology, Chandigarh was received on 02.03.2016. The said expert opinion has been furnished by Dr.Sushant Samir, Associate Professor, Sh.Gopal Dass, W.I and Dr.V.P.Singh, Professor, Mechnical Engineer Department, PEC.

14.                        The said expert opinion/report placed on record is reproduced as under:-

“The vehicle having registration NO.CH01AV 8904 Engine No.K9K8796E046827 Chasis No.MDHHSNAW5DB003538 was presented for inspection. The vehicle in question was  inspected and test driven for 20 KMs.

After perusal of the records and discussions with the complainant and other associated party present during inspection, it was found that the problem in the vehicle started after six months of purchase and the engine of the vehicle was overhauled. The engine overhauling of a new vehicle is very unusual and not desirable.

During inspection and test drive it has been observed that the engine of the vehicle has some unusual sound and emitting black smoke. The vehicle was not gaining the desired pick up while driving during test drive. The committee is of the opinion that the vehicle must have some inherent defects from beginning.”

 

15.                        The Op No.2 has filed the objections to the said report of experts, which has also been adopted by OP No.1. In the objections, it is stated that the experts have only given their opinion on the basis of the version submitted by the complainant and has not thoroughly inspected the vehicle. It is further stated that in the expert opinion, it has not been mentioned that on which basis and how the experts are of the opinion that the problem may be attributed to the manufacturing defect. It is also stated that the experts have not done any laboratory test or inspection on the vehicle and has merely relied on the version of the complainant and on test driving the vehicle. It is further stated that the experts are neither aware nor have dealt with in their report that (i) what is the cause of such defect, (ii) what is the solution of such defect either repair or replacement of parts, (iii) which part of the vehicle was inspected and what was the process of the inspection. As well as how the individual functioning of the parts of vehicle was inspected to ascertain the cause of problem.

16.                        The said objections of the Ops No.1 and 2 have been gone through and considered. It is needless to mention that the complainant had already reported the problem in the vehicle to the Ops a number of time but the same was not rectified. It is worthwhile to note that the objections furnished by the Ops No.1 and 2 are not supported by any expert report/opinion of an Independent Agency. Mere furnishing of objections to the said experts, which too is a subjective approach only, is of no help to the Ops. In the expert report, the experts observed that the problem in the vehicle started after six months of purchase and the engine of the vehicle was overhauled. The engine overhauling of a new vehicle is very unusual and not desirable. The committee opined that the vehicle must have some inherent defects from beginning.

17.                        It is important to mention here that PEC University of Technology, Chandigarh is a deemed University, having its separate Department of Mechnical engineering Department dealing with automobiles. Furthermore, the expert report, reproduced above, was prepared & presented by Dr.Sushant Samir, Associate Professor, Sh.Gopal Dass, W.I and Dr.V.P.Singh, Professor, Mechnical Engineer Department, PEC. Who are well qualified and experienced persons, working in one of the prestigious & renowned Institution. The said report is more explicit, detailed, weighty, genuine and believable. Therefore, we have no hesitation in accepting the expert report, referred to above. In this view of the matter, it is held that the problem in the vehicle started after six month of purchase and the engine of the vehicle was overhauled.

18.                        In view of the foregoing discussion & findings, we opine that the vehicle in question is suffering from manufacturing defect. Resultantly, the complainant had to undergo a lot of physical harassment, mental tension as well as he was forced to enter into unnecessary litigation on this account. Thus, the deficiency in service on the part of the Ops is writ large.  Accordingly, we allow the present complaint and directed the Ops jointly and severally as under:

(i)          To replace the said Nissan Terrando XVD car with a brand new car of the same make & model, free of charge. The complainant shall also take the car in question to the workshop of Op No.3 within 10 days from the date of receipt of copy of this order.

(ii)         To pay a sum of Rs.22,900/- to the complainant, which he had paid to PEC University of Technology, Chandigarh for getting the vehicle inspected.

(iii)        To pay a sum of Rs.1,00,000/- as compensation for mental agony and harassment to the complainant.

(iv)        To pay a sum of Rs.10,000/- as the cost of litigation to the complainant.

(v)         In case, the Op No.3 fail to comply with in order as at para No.18 (i), then they would be liable to refund the cost of the car at which rate it as sold to the complainant alongwith interest @ 9% per annum from the date of purchase till realization.

Ops shall comply with this order within a period of one month from the date its communication to it comes about. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance

 

 

Announced

14.06.2016      S.P.ATTRI           ANITA KAPOOR           DHARAM PAL

                         MEMBER          MEMBER                      PRESIDENT

 

 

Note: Each and every page of this order has been duly signed by me.                              

 

                                            

                                                DHARAM PAL                                                                                         PRESIDENT