Chandigarh

StateCommission

CC/44/2017

M/s Steel Strips Wheels ltd. - Complainant(s)

Versus

M/s BMW India Pvt. Ltd. - Opp.Party(s)

Abhinav Gupta, Adv.

01 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	44 of 2017
Date of Institution	:	16.01.2017
Date of Decision	:	01.08.2017

 

1. M/s Steel Strips Wheels Ltd., SCO No. 49-50, Sector 26, Chandigarh, through its Authorized Signatory Sh. Amit Sharma.
2. Sh. Dheeraj Garg, Managing Director M/s Steel Strips Wheels Ltd., SCO No. 49-50, Sector 26, Chandigarh.

 

…… Complainants

 

V e r s u s

 

1. BMW India Private Limited, DLF Cyber City Phase II, Building No. 8, Tower B, 7th Floor, Gurgaon 12002, India, through its M.D.
2. Krishna Automobiles, Plot No. 125, Phase -1, Industrial Area, Chandigarh 160002, India, through its General Manager.
3. BMW Group India, DLF Cyber City, Phase II, Building No. 8, Tower B, 7^th Floor, Gurgaon 122002, through its After Sales Director Mr. Werner Pagenstert.

…..Opposite parties

 

Complaint under Section 17 of the Consumer Protection Act, 1986

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                       

 

Argued by:-      Sh.Abhinav Gupta, Advocate for the complainant.

                        Sh.Sumeet Goel, Sh.Krishan Vohra and Sh.Aditya    Singh, Advocates for opposite parties no.1 and 3.

                        Sh.Jagvir Sharma, Advocate for opposite party no.2.

 

 

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                Complainant no.1 is a Limited Company and complainant no.2 is its Managing Director. This complaint has been filed through representative of the Company namely Sh.Amit Sharma, on behalf of the complainant no.1, who was authorized to do so, vide resolution dated 19.09.2015, and also by complainant no.2. It is their case that complainant no.1 purchased a new BMW 7 series car, from opposite party no.1 on 03.11.2014 against price of Rs.82 lacs, vide invoice Annexure C-1. It is their further case that the car was purchased for official/personal use of complainant no.2 (Managing Director of complainant no.1) and it was being driven by its Official Chauffer. Complainant no.2 is the beneficiary of the said purchase, as such, he would fall within the definition of a consumer, as defined under Section 2 of the Act. The car was registered in the name of complainant no.1, by the Competent Authority. It is further case of the complainants that car was sold to complainant no.1 by the opposite parties, by representing it as a ‘zero error’ car. Copy of extract of car manual was placed on record as Annexure C-3 and terms and conditions of the warranty were placed on record as Annexure C-4. The vehicle carried warranty for the period of two years, from the date of its purchase. It is grievance of the complainants that from the day one, the car starting giving problems. There was malfunctioning, so far as stereo and its clock is concerned. Furthermore, when running the car, its front left passenger seat was giving cracking sound and vibration (shaking). Matter was brought to the notice of the opposite parties. Copies of large number of emails and letters, exchanged between the parties, have been placed on record as Annexure C-5 colly. Car was taken to the authorized workshop of the opposite parties, many a times, however, grievance of the complainants could not be redressed. It is specifically stated that to address the grievance raised by the complainants, the car was taken to workshop on 24.02.2015, 27.02.2015, 07.03.2015 and 07.05.2015. Invoices have been placed on record as Annexures C-6 and C-7. It is on record that the car was repaired under warranty. It was further stated that replacement and repair of some parts failed to get any desired result. The front left passenger seat of the car continued to shake/vibrate, which caused a lot of stress and mental pain to the passenger, sitting on the back seat. On account of vibration, it was not possible to drive the vehicle and also the passenger sitting backside was unable to watch the LCD fitted at the backside of the said defective front left passenger seat. Efforts made to rectify the said defects when failed, email Annexure C-8 was sent on 27.03.2015, bringing above facts to the notice of the opposite parties.  

2.         Officials of opposite party no.3, visited Chandigarh on 10.04.2015 and test driven the car for a short distance. Shaking of front left passenger seat was video-graphed and thereafter assurance was given to take action to rectify the problem. Thereafter, lot of correspondence took place between the parties, however, defects were not rectified. Matter was even reported to Headquarter of the opposite parties situated in Munich, Germany.
3.         It is case of the complainants that on account of above defects, the car was sparingly used and it had run only 3939 kilometers between 03.11.2014 to 07.05.2015. It was further stated that car manufactured in the year 2013 was wrongly sold to the complainants in the year 2014. The car was a second-hand car and it was not a brand new, as projected. When the car was purchased, it was stated that it will give comfort beyond worlds` imagination and it was one of the most luxurious car, however, after purchase, the car proved to be pain in the neck of complainant no.2. When nothing was done, legal notice Annexure C-10 was sent on 29.07.2015, which was replied on 21.08.2015. In reply, the opposite parties admitted various defects qua vibration of front left passenger seat of the car etc. Blame was shifted to bad road conditions. Thereafter, the complainants filed consumer complaint bearing no.228 of 2015, which was disposed of by this Commission on 20.01.2016. The proposal made by opposite parties no.1 and 3 to change/replace the front left passenger seat was accepted, under a belief that it will settle the problem faced by the complainants. It is stated that by replacing the said seat, manufacturing defect in the car has been accepted by the opposite parties. It is further stated that thereafter communication between the parties continued. The car was taken to the workshop of opposite party no.2 on 21.03.2016. Seat was replaced on 23.03.2016, under warranty cover, which was valid upto 06.04.2016. It is grievance of the complainants that even then, the problems faced were not sorted out. Proper road test was not conducted and in a very hurried manner, the car was handed over to a representative of the complainants. To prove their grievance, the complainants got the car inspected and tested for abnormal variation etc. of the front passenger seat, from a Pune based Organization named “SYMEO”, having technical expertise in the field of Road Load Data Acquisition and Fatigue testing of components using servo hydraulic facility. The test was carried out on 15.10.2016, which proved that there were abnormal variations, in the front passenger seat of the car. By stating as above, an attempt was made to show that the defect indicated in the car continued to exist, even after replacement of front left passenger seat.

                It is on record that after disposal of complaint no.228 of 2015, the complainants again filed consumer complaint bearing no.320 of 2016, which was got dismissed as withdrawn, vide order dated 07.07.2016, with liberty to file fresh one.

4.         By stating that by not addressing grievance raised by the complainants qua defect in the running car, the opposite parties are guilty of providing deficient service and also adopted unfair trade practice, this complaint was filed with a prayer that directions be issued to them, for replacement of defective car with a new one or refund the amount paid to the tune of Rs.82 lacs towards its purchase; to pay lumpsum amount of Rs.3 lacs as reimbursement towards incidental expenses incurred on running of the car like road tax, insurance etc.; Rs.3 lacs, towards compensation for mental agony and physical harassment; Rs.1 lac towards deterrent/punitive damages;  and cost of litigation, to the tune of Rs.55,000/-.
5.         Upon notice reply was filed by the opposite parties.
6.         Opposite parties no.1 and 3 filed their joint written statement, wherein it was stated that in view of order passed by this Commission on 20.01.2016, in consumer complaint bearing no.228 of 2015, this complaint is nothing, but an abuse of process of law.  After getting the said seat of the car replaced in terms of above order, the complainants are barred from racking up the same issue again, as per settlement between the parties. It was further stated that complainant no.1 would not fall within the definition of consumer as provided under Section 2 of the Act. The car was purchased by a Company, to use it for commercial purpose. It was stated that no cause of action accrued in favour of complainants to file this complaint. It was further stated that front left passenger seat was replaced with a new one and the car was properly repaired in terms of order passed by this Commission on 20.01.2016. However, thereafter, with a malafide intention, the complainants again started racking up the same issues, without any justification. It was further stated that this Commission has no pecuniary jurisdiction to entertain and decide this complaint. It was further stated that total price of the car purchased was Rs.82 lacs. If interest and compensation claimed to be paid are clubbed together, aggregate value of the relief claimed will cross Rs.1 crore. It was prayed that the complaint be dismissed in view of above.   
7.         On merits, all the averments made were controverted. It was specifically stated that there exists no manufacturing defect in the car, as alleged. It was further stated that defects in the car, which were reported by the complainants were rectified. All the averments raised in the complaint were specifically denied. It was averred that as a good will gesture, if front left seat of the car was replaced, it would not amount to admittance of defects in the car. After repair, the car was test driven and handed over to the representative of the complainants. Qua report submitted by “SYMEO”, it was stated that the said report cannot be relied upon. There is nothing on record to show that the said Company was Competent to submit such a report. The report was obtained at the back of the opposite parties, as such, no reliance can be placed upon the same. It was prayed that the complaint be dismissed.
8.         Opposite party no.2 took almost similar pleas, in its written statement, as were taken by opposite parties no.1 and 3. It was pleaded that manufacturing year of the car was known to the complainants, which was shown, as such, in the invoice. The car was booked on an order Annexure R-1, placed by the Company.   
9.         In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and repudiated those, contained in the written version of the opposite parties.
10.         The contesting parties, led evidence in support of their case and also raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
11.          After hearing Counsel for the parties and on going through the evidence, on record, we are recording our findings as under:-

                Contention of Counsel for the opposite parties that this Commission lacks pecuniary jurisdiction to entertain and decide this complaint deserves rejection. It is true that the car was purchased for a price of Rs.82 lacs, besides claiming refund of above amount, the complainants also posed their claim to get Rs.3 lacs towards incidental charges, referred to above; Rs.3 lacs towards compensation for mental agony and physical harassment; Rs.1 lac towards deterrent/punitive damages; and Rs.55,000/- towards litigation expenses. If the entire relief claimed, excluding interest claimed, is clubbed together, it will fall below Rs.1 crore. Faced with the situation, Counsel for the opposite parties stated that if the interest claimed is added, in the above said relief, then the same will cross Rs.1 crore and it will not be open to this Commission to entertain this complaint. We are not going to accept this argument. It may be stated here that to clarify the position, a similar question fell for determination before this Commission in Surjit Singh Thadwal  Vs. M/s Emaar MGF Land Pvt. Ltd.,  and another, Consumer Case No. 484 of 2016, decided on 15.12.2016, wherein while negating the said plea, it was held as under:-

“Now we will deal with another contention of the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.  As per admitted facts, the complainant has sought refund of amount paid i.e. Rs.48,95,264/- alongwith interest @12% p.a. from the respective date of deposits; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment and cost of litigation to the tune of Rs.55,000/-. It is argued by Counsel for the opposite parties that if his entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and  in that event it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra). In the said case, it was specifically observed that when determining pecuniary jurisdiction of the Consumer Foras, it is the value of the goods and services, which has to be noted and not the value of deficiencies claimed. Further, that interest component also has to be taken into account, for the purpose of determining pecuniary jurisdiction.

In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.”

 

It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

 

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

 

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

 

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

 

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

 

In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected. ”

 

                Thus, the objection taken by the opposite parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

12.         Further plea was taken by Counsel for the opposite parties that complainant no.1 is a Company, as such, it would not fall within the definition of a consumer, as provided under Section 2 of the Act and further that there is nothing on record to show that before purchase of the said car, a resolution was passed that it was being purchased for personal use of complainant no.2 i.e. Managing Director of the Company. It was further contended that there is also nothing on record to show that as per terms and conditions of appointment of complainant no.2, he was entitled to use a personal car, at the instance of the Company. To say so, it is stated that complainant no.1 is a Ltd. Company and it is engaged in commercial activities. The car was purchased under an order placed by complainant no.1. To say so, reference was made to invoice dated 03.11.2014 which was issued in the name of complainant no.1. It was further stated that all expenses including repair of the car etc. were borne by complainant no.1. Most of the correspondence qua car, in question, before its purchase and thereafter was made by representative of complainant no.1. By making reference to contents of the complaint itself, it was stated that it has not been categorically stated therein that the car was purchased for personal use of the Managing Director i.e. complainant no.2.

                Above contention raised has vehemently been opposed by Counsel for the complainants. However, when asked specifically, whether before purchase of the said car, any resolution was passed, authorizing its purchase for personal use of the Managing Director, the answer came in the negative by representative of the Company. It was further asked, as to whether as per any terms and conditions of appointment of complainant no.2 (Managing Director of the Company), he is entitled to use personal car, again, the said representative stated in the negative. Not only as above, we have looked into the contents of the complaint. There is no categoric assertion that the car was solely purchased for personal use of complainant no.2. In paragraph no.2 of the complaint, it was mentioned as under:-

 

“It shall be pertinent to mention here that the said BMW was purchased for the official/personal use by the Managing Director Sh.Dheeraj Garg, of the complainant no.1. As such the complainant no.2 is the beneficiary and thereafter a “consumer” under the Consumer Protection Act.”

 

13.         It is stated that the car was purchased for Official/personal use of the Managing Director. Not only as above, it is on record that the car was registered in the name of the Company. The benefit of depreciation was also enjoyed by the Company (it was admitted at the time of arguments). Not even a single penny was spent by complainant no.2, from his pocket. Faced with the situation, to get relief, reliance was placed upon the judgment of larger Bench of the National Commission, titled as Crompton Greaves Limited and another Vs. Daimler Chrysler India Private Limited and Others, Consumer Complaint bearing no.51 of 2006 decided on 08.07.2016, wherein it was stated that when a car  or any other goods were purchased by the Company for personal use of the Director/its employees, such a transaction does not amount to purchase of those goods for commercial purpose, irrespective of the fact that whether those goods were used solely for personal use or incidentally for the purpose of the Company. We are not going to accept above said arguments. The said issue was considered by this Commission in the case of Jaycee Automobiles Pvt. Ltd. Vs. Suresh Singla and Others, Appeal No.84 of 2016 decided on 30.08.2016. After noting down the issues posed and also keeping in mind the ratio of judgment of the larger Bench, referred to above, it was observed a sunder

“It may be stated here that a Company acts/speaks through resolution(s). The terms and conditions regarding salary and perks of a Director are decided by way of resolution of the Company. In the instant case, no evidence to the effect that complainant No.1, as per any resolution of the Company, was entitled to a car has been brought on record. The car was purchased in the year 2010 in the name of the Company, and it is registered in the name of Company, a private limited company. It is case of the complainants that Audi car was being used by Sh. Suresh Singla son of Late Sh. Ranauq Ram, Director, for personal use and his son-in-law. Annexure C-37 indicates that Mr. Suresh Singla is a Director of the Company. The incident of stopping of the vehicle in between the road when the complainants were on way to Mansa Devi Temple and not starting thereafter took place on 05.07.2014 whereas the resolution, indicating that the car was being used by Sh. Suresh Singla, is after the date of incident. The appropriate and correct evidence to prove that the car was, in fact, being used by Sh. Suresh Singla, would be the terms and conditions/perks of the said Director and also the resolution before the date of incident whereby he was authorized to use the said car, which is not there. In these circumstances, we find that there is force in the argument put forth by the Counsel for the appellant/Opposite Party No.2 that evidence by way of Exhibit C-36 is afterthought being after the date of accident to bring the complainants within the definition of consumer.

17.            Since it has not been established by cogent evidence that the car was for the use of the Director of the Company, the complainants do not fall within the definition of consumer as envisaged in Section 2(1)(d) of 1986 Act.”

                Similar view was reiterated by this Commission, in a case titled as  Sh.Gursimran Singh Walia Vs. Jaycee Automobiles Pvt. Ltd. and ors., complaint case no.46 of 2012, decided on 07.11.2016.

14.         In the present case also, there is nothing on record to show any positive averments in the complaint that the car was purchased, only for the Managing Director of the Company, or that, before its purchase, any resolution was passed at  any stage, for the said purpose. There is nothing on record to show that complainant no.2 was entitled to get car towards part of his remuneration.  The depreciation qua the car in question is being availed by complainant no.1. Under above circumstance, it is held that the car was purchased by the Company for its commercial use, and, as such, the complainants would not fall within the definition of consumer.
15.         Further, objection has been raised by Counsel for the opposite parties that in the face of order dated 20.01.2016 passed by this Commission in complaint bearing no.228 of 2015, it was not open to the complainants to file the present complaint. It is on record that exactly the similar averments, as have been made in the present complaint, were made in complaint bearing no.228 of 2015, which was filed before this Commission. The said complaint, after notice, was disposed of, vide order dated 20.01.2016, by observing as under:-

“At the time of arguments, matter has amicably been settled between the parties.

Sh.Sumeet Goel, Advocate, Counsel  for Opposite Parties No.1 and 3 and Sh.Jagvir Sharma, Advocate, Counsel  for Opposite Party No.2 state that as a goodwill gesture and not making it a precedent in future, front passenger car seat will be changed/replaced with a new one within 45 days from today. For the said purpose, the Opposite Parties will make a request to the complainants to park their vehicle in the workshop for 3-4 days. During this period road test will also be carried out. It is further stated that issue regarding clock will also be looked into and in addition one year extended warranty beyond 03.11.2016 shall also be given to the complainants, subject to the complainants not raising any issue regarding car seat, clock and stereo system again to the Company. The rest of the grievances will be covered under the extended warranty.

Sh.Pankaj Chandgothia, Advocate, Counsel  for the complainants, on getting instructions from Mr.Amit Sharma, Authorised Signatory of the Company states that the abovesaid proposal is acceptable to the complainants.

In view of above, this complaint stands disposed of.

The Opposite Parties will send a written request and/or through email to the complainants as and when front passenger car seat is to be replaced.

Certified copies of this order be sent to the parties, free of charge.

File be consigned to record room, after completion.”

16.         The matter was not discussed on merits; however, dispute was amicably settled between the parties. Counsel for the opposite parties undertook that as a good will gesture and not making it as a precedent in future, the opposite parties will replace the front left passenger seat of the car. It was further stated that issue regarding malfunctioning of the clock, stereo etc. will also be looked into. The said undertaking was given subject to complainants not raising any issues, regarding the car seat, clock and stereo system again, to the Company, in future. The said offer was accepted by Counsel for the complainants. If that is so, we are afraid, whether it will still be open to the complainants to file complaint with similar dispute. An attempt has been made to justify filing of second complaint by the complainants by stating that the Counsel for the complainants, gave above said undertaking/concession, under an impression that after replacement of seat  and after removal of defects, the car would be made perfectly roadworthy, however, it has not so happened, as such, this complaint is maintainable. During the pendency of earlier complaint, everything was open to be challenged, however, the complainants agreed to settle the matter. Front left passenger seat was replaced with a new one without any cost. Other defects were also rectified and at this stage, after enjoying those benefits, it is not open to the complainants, to rack up those issues again. Accordingly, this complaint cannot be entertained.

                On merits, to show that defects exist in the car, reliance was placed upon a report, submitted by an Organization named “SYMEO”, referred to above. We have gone through the said report. It doesn’t support the case of the complainants. It is nowhere stated, as to what was the standard of vibration, which a car will contain, as per fixed norms; and further whether employees of the said Organization were qualified to conduct such test. What was their technical qualification;  whether they were qualified engineers in the filed of automobile or not, nothing has been mentioned. Furthermore, this report was received exparte, at the back of the opposite parties, as such, it is difficult to believe on that report. It is a case, where complainant no.2 appears to be over sensitive. The opposite parties have made all out efforts to satisfy him, however, they failed. We are of the considered opinion that there is neither any  deficiency in providing service, on the part of the opposite parties nor they have adopted any unfair trade practice.

17.         No other point was urged by Counsel for the parties.
18.         For the reasons recorded above, this complaint being devoid of merit, must fail and the same is dismissed with no order as to cost.
19.         Certified Copies of this order be sent to the parties, free of charge.
20.         The file be consigned to Record Room, after completion.

Pronounced.

01.08.2017

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 (DEV RAJ)

MEMBER