BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.291 of 2012/260 of 2015

Date of Instt. 06.06.2012/12.06.2015

Date of Decision: 01.05.2019

Raman Deep Singh son of S. Paramjit Singh, 98, Guru Gobind Singh Nagar, Jalandhar.

..........Complainant

Versus

1. M/s Ford India Pvt. Ltd., 3rd Floor, Building 10 C, DLF Cyber City, DLF Phase-2, Gurgaon-122002, through its Managing Director/Director/Office Incharge.

2. M/s A. B. Motors Pvt. Ltd., (Bhagat Ford), (Authorized dealers of Ford Cars), Opposite Delhi Public School, Jalandhar- Phagwara Highway, Jalandhar through its Managing Director/Director.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Jyotsna (Member)

Present: Sh. Y. V. Rishi, Adv Counsel for the Complainant.

OP No.1 exparte.

Sh. Sanjeev Sharma, Adv Counsel for the OP No.2.

Order

Karnail Singh (President)

1. In the instant complaint, an exparte order was passed by this Forum and against that order, both the OPs referred an appeal before the Hon'ble State Commission, which was decided on 30.04.2015 and whereby set-aside the exparte order of the District Forum and further direction given to both the OPs to appear before the District Forum and filed their written reply as well as to lead evidence and further ordered to this Forum to decide the matter afresh after taking evidence.

2. Brief facts of the complaint are that the complainant purchased one car namely Ford Figo 1.4 Diesel High- Ebony Diesel having Engine No.AM 31836, Chassis Number MAJ 1XX MRJIAM31836, Model July 2010 of White Colour, vide Invoice No.LDH/1708/2010-2011, dated 28.07.2010, for an amount of Rs.5,05,996/-. The said car was purchased by the complainant for his personal use with the financial assistance/help of State Bank of Patiala.

3. That after the purchase of the vehicle, the complainant get it registered with the office of Registering Authority at Jalandhar and got number PB-08-BT-0098 issued by the District Transport Officer, Jalandhar. At the time of sale, the complainant was assured that the vehicle purchased by him is under warranty for two years or 1,00,000 kilometers, whichever occurs earlier from the date of purchase. It was also informed that the said warranty covers mechanical/electrical failure during the warranty period and during the warranty period, the vehicle will be repaired on the cost including labour, replacement, parts and tax having the mechanical electrical failure, repaired by an authorized Ford Dealer, will be paid by the OP No.1. Since the date of purchase of vehicle, the complainant has been using the said car for his personal use and also has been getting the vehicle serviced from the authorized dealer of the company i.e. OP No.2 on respective due dates. The complainant got the last service of the car, when his car driven about 30,000 kilometers. The complainant has also been following the driving instructions and other guidelines for the use of vehicle, as prescribed/mentioned in the Owner's Manual, delivered to complainant by the OPs at the time of sale of said vehicle.

4. That on 07.04.2012, complainant was going to Ludhiana along with his friend through the said car and after a drive of about 30 minutes, when they crossed Phagwara, he noted the engine of the car has stopped working after giving few jerks. The car stopped on the road and thereafter, the complainant parked the car on the side of the road and tried to start the car with the help of the keys, but all in vain and ultimately the complainant informed OP No.2/Service Centre and later on the said car was taken over by the representative of the OP No.2 through their service van. At the service center of the OP No.2, the car was thoroughly checked by the Service Engineers and details were mentioned on the job sheet, which was issued at 3:40 P. M. After making formal inspection of the vehicle, the Service Engineer of the OP No.2, informed complainant that the details checking of the car is required and that will take time and since complainant had to go Ludhiana, he may have details of the defects, if any occurred in the car, on the next day. The complainant, then with the permission of Service Engineer of the OP No.2 had a few snaps of the car and handed over the car to the OP No.2 for checking thereof. On the next day, the complainant approached the OP No.2, but no proper response was given by the staff of the OP No.2 and on the 3rd day, when complainant became slightly rude with the staff of the OP No.2, he was informed that the defect has occurred in the engine, as the radiator of the car was torn and the car has run approximately 2 kilometers without any coolant in the radiator. The complainant was surprised to know the information, as the radiator of the car was not at all torn or defective, when he handed over the car to the OP No.2, he pointed out that if the radiator was torn or defective, the Service Engineer, who took the inspection of the car before preparing the job sheet never told about the rapture of the radiator. It is not possible that such a major defect has not come to the knowledge of the Service Engineer. The complainant immediately pointed out the Service Engineer that if the car was not damaged or accidental one and its radiator was in perfect condition, but the said Service Engineer could not reply the query made by complainant, but simply asked that the engine has gone defective and it can only be repaired/set right on payment of service charges, which he estimated more than rupees one lakh. The complainant is of the view that the defect occurred in the car is a mechanical defect, and it has occurred just after 4000 kilometers of last service, which is covered under the warranty and to get rid of that warranty, the Service Engineer of the OP No.2 has internationally damaged/torn the radiator of the car. The act and conduct of the OPs No.1 and 2 in not entertaining the complaint of the complainant about the mechanical defect in the car and claiming amount for making the car set right is totally against the terms and conditions of the Owner's Manual issued at the time of sale of the car. The complainant approached OP No.2 many times and requested to repair the car as per the terms of the warranty offered in the Owners' Manual, but request of the complainant remained un-fruitful. The car in same position is still lying in the premises of the OP No.2 and thereafter, the complainant served a legal notice, but all in vain and as such, the act and conduct of the OPs is tantamount to unfair trade practice as well as deficiency in service, which gave necessity to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to repair the car of the complainant as the same is under warranty period, without any payment or charges and further OPs be directed to pay Rs.2,00,000/- as compensation and further OPs be directed `to pay Rs.20,000/- as litigation expenses.

5. After getting set-aside exparte order from the Hon'ble State Commission, both the OPs appeared in this Forum and OP No.1 filed its reply through its counsel and contested the complaint by taking preliminary objections that the allegations made by the complainant in the complaint are false and frivolous and the same has been filed with the ulterior motive to harass and defame the answering OP. The complaint is an afterthought and the complaint is deliberately trying to distort the facts of the case to suit his own convenience in order to mislead the Forum. In fact the complaint is not maintainable before this Forum and the same is liable to be dismissed. It is further averred that there is no defect in the vehicle and there had been no deficiency in services rendered by OP No.1 and as such, no liability can be fastened upon OP No.1 towards the repair/replacement of the subject vehicle. The damage to the vehicle had occasioned due to the act solely attributable to the complainant as the vehicle was continuously driving in overheated condition while ignoring the indicator on the dash board showing the vehicle was overheated. The OP No.1 cannot be held liable for the negligence of the complainant. In view of the same, the present complaint is liable to be dismissed as the complainant alone is responsible for the damage to the engine. It is further alleged that there is no manufacturing defect in the vehicle and mere statement of the complainant cannot be accepted as a gospel truth, but it is required to be proved beyond doubt by means of credible documentary evidence and further submitted that the facts of the complaint itself shows that it require detailed oral as well as documentary evidence, and therefore, the dispute raised in the present complaint cannot be adjudicated in the present summary proceedings and only Civil Courts has jurisdiction to try and adjudicate upon the issue in dispute and further averred that there is no privity of contract between the OP No.1 and the complainant, therefore, grievances if any, with respect to deficiency in service and/or unfair trade practice cannot be made against the answering OPs. In the absence of any deficiency in service, unfair trade practices or defect on the part of the OP No.1, the complaint is liable to be dismissed qua OP No.1 with exemplary costs and further alleged that the present complaint is totally misconceived, false and vexatious. On merits, it is admitted that the complainant purchased the car in question from OP No.2 after making a payment, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

6. OP No.2 filed its separate reply and contested the complaint by taking preliminary objections that the complaint is not maintainable against the replying OP and no cause of action has arisen in favour of the complainant against the replying OP. Rather the complainant has concealed and suppressed the true facts and further submitted that the case of the OP that the warranty covers only manufacturing defect however in the present case, there is no manufacturing defect in the vehicle Ford Figo. In reality, the engine of the vehicle was seized due to overheating of the car engine. The radiator of the vehicle in question was torn/punctured due to hitting of some object on front portion of car. It was only due to striking of some hard object on the radiator, radiator was punctured and the coolant as well as water in the radiator would have leaked leading to overheating of car engine. The complainant/driver of the vehicle has ignored the indicator of temperature meter gauge on dashboard panel of the car. The complainant has mis-stated and tried to distort the matter and further submitted that there is no deficiency in service on the part of the OP. It is further averred that the negligent acts of the driver/owner are not covered in warranty, hence the complaint is liable to be dismissed. On merits, it is admitted that the complainant purchased the car, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

7. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.CC-1 to Ex.CC-13 and further tendered supplementary affidavit of the complainant Ex.CC/14 and one document Ex.CC/15 and closed the evidence.

8. OP No.1 despite availing numerous opportunities and even one last as well as one with cost, despite that the OP No.1 failed to lead any evidence and ultimately, OP No.1 did not come present and accordingly, the OP No.1 was proceeded against exparte.

9. Counsel for the OP No.2 tendered into evidence affidavit Ex.OP2/A alongwith some documents Ex.OP2/1 to Ex.OP2/17 and closed the evidence.

10. We bestowed our thoughtful consideration to the submissions made by learned counsel for the complainant as well as learned counsel for the OP No.2 and also gone through the case file very minutely.

11. After taking into consideration the entire story pleaded by both the parties, it reveals that the complainant admittedly purchased the car Ford Figo 1.4 Diesel on 28.07.2010 after making a payment of Rs.5,05,996/- as indicated in the Invoice Ex.CC-1 and further, it was got registered with the District Transport Authority, who issued the number as well as registration certificate and photostat copy of the same is Ex.CC-2. The factum in regard to purchase as well as occurring some defect in the vehicle on 07.04.2012 and same by brought to the service centre of OP No.2 for repair purpose, is not in dispute rather upto this extent the facts are admitted.

12. Now question arises only whether the car in question is within a warranty period, if answering is 'Yes', then the next question is to be analyzed is whether the defect in the car is covered under the warranty or not, these are the mute question, which are to be adjudicated after considering the oral as well as documentary evidence of both the parties.

13. The complainant alleged that on 07.04.2012, while he was going to Ludhiana along with his friend for their personal work and when they crossed Phagwara, then he noted the engine of the car has stopped working just after giving few jerks and he immediately stopped the car and thereafter, he made efforts to start the car with the help of key, but could not get any fruitful results and ultimately, he informed the service centre of OP No.2, who brought the car at service centre and where the car was checked by the engineer, who issued the Job Sheet and copy of the same is available on the file Ex.CC-6 and further alleged that the OP refused to repair the car free of cost, simply on the pretext that the radiator was torn/punctured due to hitting with hard surface and when there is an accident due to the fault of the owner/driver, then that damages is not covered under the warranty and further, OP alleged in their written statement that there is no manufacturing defect, if there is manufacturing defect, then only the same is covered under the warranty, but here the damages caused to the vehicle due to the act solely attributable to the complainant because who drove the car by ignoring the indicator on the dashboard showing the vehicle was overheated and when the vehicle was overheated, then the radiator of the same was torn/punctured. The story elaborated by OPs in regard to torn/puncture of radiator is not seems to be true rather the plea taken by the complainant that the vehicle when brought to the workshop of OP No.2, immediately in his presence the same was checked by the engineer, but at that time, the engineer did not refer the torn/damaged of the radiator, in his Job Sheet Ex.CC-6 and further alleged that such like a major defect cannot be over-sighted by the engineer rather the said damage/torn of the radiator is intentionally done by the employee of the OP No.2/Service Centre, just to get rid of that warranty.

14. Keeping in mind the plea taken by the complainant, we gone through the copy of Job Sheet and find there is not mentioned by the engineer in regard to any defect in the radiator, when the engineer checked the car thoroughly and it is not possible that he over-sighted such a major defect in the car i.e. the radiator of the car is damaged/torn, further if we accept the version of the OPs that the radiator of the car was torn/punctured due to leakage of water, but if the water was leaked due to hitting of the car with some hard surface as alleged by the OPs in their respective reply. This plea of the OP is not seems to be a true one because if we go through the photographs placed on the file by the complainant i.e. Ex.CC-6 to Ex.CC-9 as well as the photographs placed on the file by the OP No.2 i.e. Ex.OP2/2 to Ex.OP2/17, except there is a small piece broken of the number plate, except that there is no damage on the front portion of the car. If the car hit with a hard surface, then there must be some dent on the car, simply touching the car with a hard surface is not sufficient to torn/puncture the radiator, the same can be happened only if the car is struck with a hard surface with a full force and in that situation, there must be a big dent in the car. So, the version of the OP is not acceptable nor seems to be true one rather the same is manipulated just to debar the complainant from taking the benefit of the warranty period.

15. Further, we have also considered the version of the OP that there is no manufacturing defect in the car, if so, then the damages caused to the car is not covered under the warranty terms and accordingly, we have also gone through the warranty terms and conditions, its photostat copy is available on the file Ex.CC-5. Whenever any parts, which is usually not changed on each occasion of the service, is become defective, while car is running that definitely covered under the faulty manufactured. As happened in the present case, the car was smoothly running from Jalandhar to Phagwara and there is no dent on the car, where-from we can ascertain that the car was hit with hard surface, if so, then all of sudden when the car cross the Phagwara, stopped moving by giving a 2 or 3 jerks, means all of sudden some defects occurred in the car due to faulty manufacturing of the car and that defect occurred only for the reason that there was some mechanically defect in the car, if so, then the case of the complainant is apparently covered under the warranty terms and as such, we find that the plea taken by OPs is not acceptable in the eyes of law, whereas the case of the complainant is apparently proved.

16. We further like to make it clear that a defect was occurred in the car in the month April, 2012 and after a long litigation, now this complaint come for decision, but during that period, the complainant got repaired the car after making payment from his own pocket as envisaged in the additional affidavit of the complainant Ex.CC/14, wherein categorically stated that he paid a sum of Rs.1,50,003/-, vide bill dated 27.01.2013 and then get the delivery of car from the service centre, but this version of the complainant is not controverted by OP in any manner. So, this fact is admitted.

17. In the light of above detailed discussion, the complaint of the complainant succeeds and accordingly, the same is partly accepted and OPs are directed to reimburse the said repair bill amount of Rs.1,50,003/- to the complainant with interest @ 12% per annum from the date of payment by the complainant i.e. 27.01.2013, till realization. Further, OPs are directed to pay compensation to the complainant for causing mental tension and harassment, to the tune of Rs.50,000/- and further OPs are directed to pay litigation expenses of Rs.10,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

18. 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 Jyotsna Karnail Singh

01.05.2019 Member President