Punjab

Moga

CC/16/89

Naresh Kumar Sharma - Complainant(s)

Versus

M/s Dada Motors Pvt. Ltd. - Opp.Party(s)

In person

16 Aug 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

                                                                                                                                                              CC No. 89 of 2016

                                                                                                                                                              Instituted on: 25.04.2016

                                                                                                                                                             Decided on: 16.08.2016

 

Naresh Kumar Sharma age 49 years s/o Sh. Krishan Lal Sharma r/o Mohalla Gogoani, Zira, District Ferozepur.

                                                                          ……… Complainant

 

Versus

1.       M/s Dada Motors Pvt. Ltd., Near Kaner Hotel, Bughipura Chowk, Moga, Tehsil & District Moga, through Manager.

 

2.       M/s Dada Motors Pvt. Ltd., Savitri Complex-1, G.T.Road, Dholewal Ludhiana, through Manager.

 

3.       Tata Motors Limited, through Regional Manager, Jeevan Tara Building, 5 Sasad Marg, Navi Dehli.

 

                                                                           ……….. Opposite Parties

 

 

Complaint U/s 12  of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President,

                   Smt. Vinod Bala, Member,

                   Smt. Bhupinder Kaur, Member.

 

Present:Sh. Sanjeev Kumar Attorney of the complainant.

Sh. Inder Mohan Pal Singh, Law Officer for opposite party nos.1 & 2.                       

Sh. Darshan Singh Gill, Advocate Cl. for opposite party no.3.

 

 

ORDER :

(Per Ajit Aggarwal,  President)

 

1.                Complainant has filed the instant complaint under Section 12/14 of the Consumer Protection Act, 1986 ( hereinafter referred to as the "Act") against M/s Dada Motors Pvt. Ltd., Near Kaner Hotel, Bughipura Chowk, Moga, Tehsil & District Moga, through Manager and others (hereinafter referred to as the opposite parties) directing them to replace the car in question with new one. Further opposite parties may be directed to pay Rs. 50,000/- as compensation on account of harassment, mental tension and for registration and insurance charges to the complainant.

2.                Briefly stated the facts of the case are that the complainant has purchased a new car Tata Bolt XM Diesel, chassis no.MAT611652FPG28787, Engine no.100A2000-0589346, HP 1248CC, Model 07/2015 from opposite party no.1 vide invoice dated 18.12.2015 for an amount of Rs.6,15,315/- and the registration number of the said vehicle is PB-05AD-3821. The delivery of the said car was given by opposite party no.1, but the Tax invoice was issued by opposite party no.2. After few days of the purchase, axle of the said car got defective and started raising noise. The complainant complained about the same to opposite party no.1. On it, opposite party no.1 replaced axle of the car. After some days both the axles started raising noise and complainant again complained about the same to opposite party no.1, who replaced both the axles, but now both the axles started raising noise. The complainant requested the opposite parties to replace the car in question with new one, but the opposite parties did not pay any heed to the request of the complainant and started lingering on the matter. It has been further alleged that the Music System of the said car, which is of Harman Company and the price of which is approximately Rs.55,000/- stopped while paying and repeatedly got hild. The complainant many times requested the opposite parties to replace the car, but the complainant has been harassed by the opposite parties unnecessarily.

3.                Upon notice opposite party no.1 to 3 appeared through their counsels and filed their separate written replies.

                   Opposite party nos.1& 2 filed written reply taking preliminary objections that the complaint filed by the complainant is not maintainable against the answering opposite parties, as no cause of action ever accrued to the complainant against the answering opposite parties; that the complaint is liable to be dismissed as there is no manufacturing defect in the vehicle. The vehicle has runs upto 18221 kms lastly on 19.05.2016, when the same was brought by the complainant for the service in the workshop of the answering opposite parties. The kilometre reading of the vehicle clearly shows that there is no manufacturing defect in the vehicle, if there had been any defect in the vehicle the same could not run up to that extent in a short period within five months from the date of its purchase; that the complainant has not approached this Forum with clean hands and concealed the material facts from this Forum. The complainant has falsely alleged that the axle of the vehicle was changed twice. The service history of the vehicle clearly shows that the complainant approached the answering opposite parties regarding the drive shaft at the kilometre reading of 3021 on 20.01.2016 and the same was changed by the answering opposite parties under warranty free of costs to the entire satisfaction of the complainant. After that the complainant never complained about the driving shaft of the vehicle and the vehicle has run up to 18221 km without any problem and the music system problem was also checked on 13.02.2016 after that the complainant never complained about any problem in the music system. The vehicle of the complainant is covered under warranty of the manufacturer and the free warranty services are also provided to the complainant which is applicable from the date of purchase of vehicle. This warranty is provided as a backup for any after sale operational issues faced by the owner of this new technologically superior vehicle so that customers do not find any difficulties in using the same. Hence during this period if there is any problem the same can be easily taken care of and therefore, there was no need arose for filing this complaint, even on that ground it is premature complaint requiring its dismissal on this ground also; that the complaint is not try-able by this Forum as the complainant is not a consumer as the vehicle in question is used by the complainant for commercial purpose. Moreover, the kilometre reading of the vehicle clearly shows that the vehicle was driven up to 18221 km on 19.05.2016 from the date of purchase i.e. 18.05.2015. This clearly shows that the vehicle is driven upto 119 km daily, so the complaint of the complainant is liable to be dismissed on this score also. On merits, it is admitted correct to the extent that the complainant purchased a new car bolt from answering opposite parties. Further the all other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with costs has been made.

4.                Opposite party no.3 filed written reply taking preliminary objections that the present complaint filed by the complainant is an abuse of process of law and is not maintainable, as the complainant has approached this Forum by suppressing the material facts; that the averments made in the complaint are vague, baseless and with malafide intent. It is further submitted that the car/utility vehicle in question has covered more than 18000 kms within a mere span of approx 6 months, which speaks about the extensive usage of the vehicle in question. Thus, it would be evident that the said vehicle in question has been used extensively by the complainant which establishes absence of any kind of defect in the car. The opposite party stated that the complainant had failed and neglected to follow the guidelines given in the owner's manual, as recommended for smooth and maximum performance of the vehicle in question viz. correct operating procedures – do's and don'ts for maintenance and performance of the vehicle. It may be noted herein that for effective maintenance and smooth running of the vehicle, every customer has to carry out the mandatory recommended service at regular intervals at the authorized service centres and workshops of the opposite party. Further submitted that as per the service schedule of the vehicle in question, the complainant was supposed to bring the subject vehicle at the recommended intervals as mentioned in the owner's manual and service book for carrying out the mandatory free services, however, the complainant had failed to carry out schedules services of the vehicle as per the recommended service schedule. In the instant case, the complainant has not produced any record, so as to show that the complainant had regularly serviced the vehicle as per the recommended service schedule. In this case, the opposite party relies on the clause 5 of the terms and conditions of warranty, which states as "The warranty shall not apply if the vehicle or any part thereof is repaired or altered otherwise than in accordance with our standard repair procedure, or by any person other than our sales or service establishments, our authorized dealers or service centres or service points in any way, so as, in our judgement which shall be final and binding, to affect its reliability, nor shall it apply if, in our opinion which shall be final and binding, the vehicle is subjected to misuse, negligence, improper or inadequate maintenance or accident or loading in excess of such carrying capacity as certified by us or such services prescribed in our Owner's Manual and Service Book are not carried out by the buyer through our sales or service establishments, our authorised dealers or service centres or service points." The opposite party stated that in view of improper maintencne and servicing of the vehicle, the warranty ceases to exist and craves leave to reply on the relevant terms and conditions of the warranty at the time of hearing. It is submitted that as per the Service Schedule the vehicle was required to be presented for its First Free Service at 4500-5000 kms or 3 months, whichever is earlier. However, the complainant has failed to avail the First Free Service and he had violated the terms and conditions of the Warranty Clause and as a result no cause of action arises.

          It is submitted that the said utility vehicle was delivered after carrying out of Pre-Delivery Inspection (in short, PDI) by the dealer. In this regard, it is pertinent to state that all passenger vehicles and commercial vehicles manufactured by this opposite party are marketed only after the prototype of the car/utility vehicle being approved by the Automotive Research Association of India. All the vehicles manufactured in the plant of this opposite party are put through stringent control systems, quality checks and test drives by the Quality Assurance Department before being cleared for despatch to the market. It is pertinent to state that this opposite party is "ISO TS/16949 certified, which is the international standard for quality systems for all the automotive companies and this international standard specifies requirements for a quality system where an organization needs to demonstrate its ability to consistently provide produce meeting customer's satisfaction and applicable statutory and regulatory requirements. Further, it is stated that after being dispatched to the authorized dealers of the opposite party, the said dealers carry out Pre-Delivery Inspection (PDI) of all new vehicles before selling it to customers as per the standard check-list. Further, whenever any vehicle reports to a workshop for schedules services or for any repairs, the complaints or grievances of the customers are recorded in the job card, which do not imply admission of any defects in the vehicle, but a mere representation of the customer's grievances on the said vehicle. Thereafter standard checks are carried out at the workshop and observation is recorded by the Service Advisor on the backside of the job-card. It helps the concerned workshop to provide necessary consultancy or advice regarding the condition of the vehicle to the customer. The car is checked at the workshop by the Quality Inspector and by Diagnostic Expert Cum Trainer during pre and post repairs to ensure quality workmanship. The Service Advisor of the workshop, who interfaces with the customer, is adequately trained to provide proper job explanation of the works carried out and even provides test drive to the customer at the time of delivery of the vehicle after every service/repairs to the entire satisfaction of the customer. The vehicle as attended by the opposite party's dealers/service points fully comply with the warranties, assurances and specifications, provided for it by the manufacturer, regarding quality and performance of the vehicle. Hence, there cannot be any complaint of deficiency of service against this opposite party by the complainant and the complaint deserves to be dismissed with costs.

That the complainant has filed this baseless complaint alleging manufacturing problems in the vehicle without having produced any expert opinion to prove that the subject vehicle suffers from the problems as alleged, or to establish any defect in the car/utility vehicle in question; that the relationship exists between the opposite parties is on 'principal to principal' basis. It is submitted that the answering opposite parties cannot be held liable for any independent act and/or omission, committed by the other opposite party. Thus for the acts of the one opposite party, another opposite party could not be held vicariously liable. Without prejudice to the foregoing submission, it is submitted that the instant complaint makes out no ground for relief under the provisions of section 14 of the Consumer Protection Act, 1986; that the instant complaint is liable to be dismissed under section 26 of the Consumer Protection Act, with costs for being false, frivolous, vexatious and misconceived. In parawise reply, the all other allegations made in the complaint have been denied.             

5.                In order to prove the case, complainant Naresh Kumar tendered in evidence his duly sworn affidavit Ex. C-1 and affidavit of Sanjeev Kumar Sharma s/o Sh. Krishan Lal, his Attorney Ex. C-2, Power of Attorney Ex.C-3 and copies of documents Ex.C-4 to Ex.C-7 and closed the evidence. 

6.                In rebuttal, the opposite party nos.1 & 2 tendered in evidence duly sworn affidavit of Sh. Inder Mohan Pal Singh, Law Officer Ex. OP-1,2/1 and copies of documents Ex.OP-1, 2/2 to Ex. OP-1, 2/9 and closed the evidence. Whereas, opposite party no.3 tendered in evidence affidavit of Sh. M.K. Bipin Das, Manager of M/s Tata Motors Ltd. Ex. OP-3/1 and closed the evidence.

7.                We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file.

8.                Ld Counsel for complainant argued that complainant purchased a new car Tata Bolt XM Diesel, chassis   no. MAT611652FPG28787 from OP-1 vide bill dated 18.12.2015 for Rs.6,15,315/-. It is contended that after few days of its purchase, the axles of said car got damaged and started making noise. Complainant complained about this fact to OP-1, who changed the same with new one, but after few days of change, both the axles of vehicle started making noise, which were also replaced by OP-1 on complaint by complainant, but thereafter, replaced axles again started making noise. Complainant made many requests to OPs to replace his vehicles, but they paid no heed to his request. It is further contended that music system installed in the said car is also not working properly. Complainant made several requests to Ops to replace the vehicle in question, but all in vain. All this amounts to deficiency in service and trade mal practice on the part of OPs and has caused great harassment and mental agony to complainant. He has prayed for accepting the present complaint alongwith compensation and litigation expenses.

9.                To controvert the allegations of complainant, ld counsel for OP-1 and 2 asserted that there is no manufacturing defect in the vehicle in question. On 19.05.2016, when said car was brought to the workshop of OP-1 and 2, it had run upto 18221   kilometre and this reading clears that there is no manufacturing defect in car in question. Had there been any defect in it, it would not have run upto long distance of 18221 km. As per service history of vehicle, complainant approached OP-1 and 2 regarding complaint of drive shaft, which was changed by OPs free of cost to the entire satisfaction of complainant. Music system of car was also checked on 13.02.2016 and thereafter, complainant never complained about the shaft or music system. Moreover, kilometre reading of the vehicle shows that since its purchase on 18.12.2015, it has covered 18221 kilometers, which clears the point that complainant has been using the said vehicle for commercial purpose and it has been driven upto 119 kms daily. It is further averred that whenever, complainant approached OPs regarding service and job of vehicle, the same is done to the entire satisfaction of complainant and there is no deficiency in service on the part of OP-1 and 2. All the other allegations levelled by complainant are denied being wrong and incorrect with a prayer to dismiss the complaint.

10.              Denying all the allegations raised by complainant, Ld counsel for OP-3 also argued that car purchased by complainant has covered more than 18000 kms within a short span of 6 months,  which implies that it has been extensively used. Moreover, complainant has failed to follow the guidelines given in owner’s manual as recommended for smooth and maximum performance of vehicle. For effective maintenance and  smooth running of vehicle, complainant was supposed to carry out the mandatory free services, but he has failed to do so and did not carry out the scheduled services as per recommended service schedule. Complainant has failed to produce any record showing that he had regularly got done the service of vehicle as per recommended service  schedule. First free service of vehicle was to be done at 4500-5000 kms or after 3 months, but complainant did not do so and thus has violated the terms and conditions of warranty clause and therefore, no cause of action arises against OP-3. It is further averred that vehicle purchased by complainant is of highest quality and complainant purchased it after being fully satisfied with conditions of its performance. It is further averred that complaint filed by complainant is false, frivolous and baseless and it is an abuse of process of law. Complainant brought the vehicle to OPs with complaint of shaft, which was replaced and music system,  which was set right after minor repairs and thereafter no defect was ever reported by complainant. All other allegations have been denied with prayer to dismiss the complaint.

11.              The case of complainant is that he purchased a new car Tata Bolt from OP-1 vide bill dated 18.12.2015 for Rs.6,15,315/-. After few days of purchase, axle of vehicle in question became defective and started making noise. On complaint by complainant the same was changed by OP-1, but after few days, both the axles started making noise. Complainant again reported the matter to OP-1, who replaced both the axles, but they again started making noise. Music system installed in car is also not working properly. Complainant made many requests to OPs to replace the car with new  one, but all in vain.  Complainant has prayed for accepting the present complaint alongwith compensation and litigation expenses. In reply, OPs1 and 2 asserted that there is no manufacturing defect in car in question as when vehicle was brought to their workshop for service, it had covered 18221 kilometers and if there was any defect, it could not have run upto 18221 kms within a short span of 5-6 months. They have denied all the allegations of complainant and asserted that shaft of vehicle was not changed twice, rather it was changed on 20.01.2016 free of costs upto the entire satisfaction of complainant and thereafter, complainant did not make any complaint regarding this. OP-3 controverted the allegations on the point that complainant has not followed up the service schedule recommended for proper maintenance and smooth running of vehicle. OP-3 has also prayed for dismissal of complaint.

12.              Ld Counsel for complainant argued that the car purchased by complainant from OPs is not running properly from the very beginning as it has some manufacturing defect. Despite repeated visits, the Ops failed to remove the defect from the vehicle. The OPs argued that there is no defect in the vehicle. It is wrong that axle of alleged vehicle was changed twice. The complainant approached OPs regarding fault of driving shaft on 20.01.2016 and the same was changed under warranty to the satisfaction of complainant and after that complainant never complained about driving shaft or axle of vehicle. The music system of vehicle was also checked on 13.02.2016 and after that complainant never complained about any defect in the music system. They further argued that complainant did not follow the service schedule of the vehicle for its proper maintenance and smooth running of the vehicle.

13.              From the perusal of the file and the copies of job card and service history Ex. OP-1, 2/2 to 8, produced by OPs themselves clearly shows that complainant visited the workshop of OPs on regular intervals for repair and service of his vehicle. So, OPs cannot say that complainant has not followed the service schedule. Careful perusal of job card and service history dated 14.01.2016 Ex OP-1,2/2, shows that complainant visited the workshop of OPs on 14.01.2016 with problem of gear oil leakage and report of action taken shows as 'Transmission Oil Top up  +  Drive Shaft Check'. Again vide job card Ex OP-1,2/3, complainant reported the problem of unusual suspension noise on 20.01.2016, on which the action taken is repair and replacement of driving shaft each. Again vide job card Ex Op-1,2/4 on 13.02.2016, the complainant reported poor sound from music system, on which action taken is stereo checked. Again vide job card Ex OP-1,2/6 on 15.04.2016, the complainant reported for unusual suspension noise and on it action taken is repair and replacement of driving shaft each + driving shaft noise checked.

14.              All these job cards and service history shows that the complainant approached OPs for same problem i.e. unusual suspension noise in the driving shaft again and again whereas the version of OPs is that the complainant approached them only once on 14.01.2016 for the defect in driving shaft and thereafter never reported any problem. This fact is falsified from their own documents, so from the above discussion, we are of considered opinion that there is some fault in the driving shaft and axle of vehicle in dispute and OPs failed to remove this fault from the vehicle which amounts to deficiency in service and trade mal practice on their part. Hence, present complaint in hand is hereby allowed with direction to OPs to repair and replace the defective parts of the vehicle with new one without any cost under the warranty conditions to entire satisfaction of complainant. OPs are further directed to pay Rs.20,000/-(Twenty thousand only) to complainant as compensation for harassment and mental agony suffered by him besides litigation expenses of Rs.3000/-(Three thousand only). Compliance of this order be made within one month of receipt of the copy of the order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of the order be supplied to parties free of cost as per rules. File be consigned to record room.

Announced in Open Forum.

Dated: 16.08.2016.

 

 

                              (Bhupinder Kaur)         (Vinod Bala)         (Ajit Aggarwal)

                               Member                           Member               President