Date of Filing: 07/09/2015
Date of Order: 28/09/2017
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed U/S 12 of the Consumer Protection Act 1986 alleging the deficiency in service on the part of the O.P and prays for orders to direct the O.Ps to deliver the new vehicle of the same model in place of defective vehicle bearing Reg.No.KA 10 AD 0198, to pay all incidental charges for the registration of the vehicle. Further prays to pay a sum of Rs.90,000/- towards repair and replacement of parts and to pay upto date due of loan installments and Rs.5,00,000/- as damages along with interest at the rate of 18% per annum from the date of delivery of the defective vehicle and for other relief as sought in the complaint.
2. The brief facts of the complaint are that the Complainant is having a good experience in driving and maintaining vehicles decided to have the own vehicle so that he can earn independently for himself and for his family livelihood. Hence the complainant approached the 2nd O.P and put forth his intention of buying Chevrolet Enjoy TCDI LS vehicle as a 2nd O.P being a dealer/distributor/agent of the first O.P who is the manufacturer of the said motor vehicle which the complainant intended to purchase. Further the 2nd O.P issued the quotation for the said vehicle and the complainant approached his banker the 3rd O.P for advancement and obtaining loan and on approaching the 3rd O.P agreed to advance loan to the complainant for the purchase of the Chevrolet Enjoy TCDI LS vehicle. Accordingly necessary papers were done in the required way between the complainant and the O.P No.2. Further complainant paid Rs.7,09,326/- to the O.P.No.2 and the O.P.No.2 acknowledged the receipt of the said amount thereafter O.P.No.2 delivered the vehicle with engine No.10CL2Z132630003 and the same got delivered on 31.10.2013. Further the vehicle got registered before the transport authority with a registration bearing No. KA 10 AD 0198 and the complainant also paid Tax, registration, insurance premium. It is stated that, the said vehicle got registered for the own use with permit as Cab/Taxi and the vehicle was made hypothecation in favour of the third party. Further complainant submits that before the delivery of the vehicle to the complainant and test drive of the vehicle was held at that juncture itself there was a defect of “sudden getting off of the engine” and on notice the 2nd O.P managed and assured the complainant that the defect of the engine getting off well get and all right within some days of continues drive. It is stated that, complainant believing the words of the 2nd O.P in good faith and took the delivery of the vehicle and was managing to drive the vehicle though he had repeated trouble and was constrained to approached the 2nd O.P for repairs on several dates which was almost once or twice in a month but even then the defects could not be rectified by the 2nd O.P. It is stated that complainant incurred expenditure of Rs.90,000/- for repair and replacement of parts apart from free service at the 2nd O.Ps end. It is alleged that, due to the repeated troubles the complainant was put into trouble, suffered mental agony, pressure and fell into loss. Further stated that, O.P.No.3 repeatedly contacted the complainant to clear the due payments and due to payment in default accrued because of no earnings to the complainant and repeated troubles and repairs to the vehicle which was in the custody of the 2nd O.P. It is alleged that, being fed up with the repairs of the vehicle politely requested the 2nd O.P to replace the defective vehicle with a new of the same model. It is stated that the 2nd O.P being an agent of the 1st O.P agreed to do so by intimating and after obtaining permission from the first O.P who is the manufacturer of the defective vehicle delivered to the complainant. It is stated that, 2nd O.P did not make any efforts nor responded positively and hence complainant alleged deficiency in service on the part of O.P.No.1 and 2. However, on several requests and having no alternative complainant got issued legal notice to the O.Ps on 27.7.2015 but the O.Ps did not bother to comply the demand made in the notice. Hence the complainant was constrained to file this present complaint.
3. Upon issuance of notice O.P.No.1 to 3, O.P No.1 and 2 appeared through their counsel and O.P.No.1 filed its version and O.P.No.2 for the reasons best known to him did not chose to file version, hence the version of O.P.No.2 is taken as not filed. However, on issuance of notice O.P.No.3 remained absent and hence O.P.No.3 placed ex-parte.
4. In the version O.P.No.1 it is contended that the cars manufactured by General Motors India Pvt. Ltd., including Chevrolet Enjoy TCDI LS are of international quality standards and the same are sold throughout India and also exported to other countries. These vehicles undergo several tests and for quality, design, performance, safety, etc., both internally and by independent authority like “International Centre for Automotive Technology” (ICAT) Manesar, and after they pass all tests these vehicles are certified and only thereafter, they are made available to customers.
5. Further contended that, after the manufacturing of the vehicle by General Motors India Pvt. Ltd., Chevrolet Sales India Pvt. Ltd. takes care of the distribution marketing sales and services of Chevrolet brand vehicles across the country through its authorized dealers network. Further contended that Chevrolet enters into agreement with its dealers/retailers with that effect retailer’s sale and service agreement is executed between the Chevrolet Sale India Pvt. Ltd and O.P.No.2. As per which O.P.No.2 is not a representative/agent of Chevrolet Sale India Pvt. Ltd and they operate on principle to principle basis and hence contended that neither of them can be liable for any act, conduct etc., of the other and nor any one of them have any kind of fiduciary obligation. It is contended that it is the duty of the retailer/authorized dealer to take care of every sale and service issues.
6. Further contended that, since 31.10.2013 the complainant has driven the vehicle till 11.06.2015 and covered 82306 kms and thereafter continuous to use it. It is contended that on 11.06.2015 complainant brought the vehicle for servicing and at that time it was noticed the complainant has removed and refixed fuel pump relay and the same was not done properly which lead to further complications. The complainant had reached the terms and conditions of the warranty by getting pump relay and refixed the same at unauthorizedly. The complainant was informed that this may lead to further complications, which subsequently led to malfunctioning of fuel tank pump and high pressure pump. It is contended on 17.06.2015 after completing 82566 kms. The complainant brought the vehicle with the complainant of vehicle getting off while running for the first time. At that time the fuel tank pump was replaced under warranty and without charging the complainant for the same.
7. It is further contended that, on 19.6.2015 after complicating 82628 kms the complainant brought back the vehicle against the complaint of vehicle getting off while running and on inspection under observation it was suspected that high pressure pump has failed. Hence on 23.06.2015 the high pressure fuel pump was replaced under warranty and without charging the complainant for the same. It is contended that since the date of purchase till 23.06.2015 the complainant has brought the vehicle several for the general and running maintenance. During these services the front and back break pad/shoes of the vehicle have been replaced three to four times under warranty and without charging the complainant for the same. It is contended that at every time the complainant had any issue the same has been attended to promptly. The complainant has paid only for consumables and other extra items at his violation. It is contended that the vehicle already run for 82753 kms in about one and half years as Taxi and having earned huge income there from. Now asking for replacement of the said vehicle with a new vehicle on false grounds is wholly unjustified and is unlawful. Hence it is contended that there is no manufacturing defect in the vehicle or deficiency of service on the part of the O.P.No.1. Further the O.P. denies all the allegations of the complainant and the said vehicle is used for commercially and hence contended that the complainant is not a consumer. On the above said grounds O.P.No.1 submits that complaint is wholly false, frivolous and vexatious and the same is filed with mala-fide intention for unlawful gain and ultimately prays for dismissal of the complaint.
8. In order to substantiate the case of the parties and both parties have filed their affidavit evidence and also heard the arguments.
9. On the basis of the pleading of the parties, the following points will arise for our consideration is:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.Ps?
(B) Whether the complainant is entitled to
the relief prayed for in the complaint?
(C) What order?
10. Our answers to the above points are:-
POINT (A) & (B): In the Negative.
POINT (C): As per the final order
for the following:
REASONS
POINT No. (A) & (B):-
11. On perusal of the pleadings of the parties, it is not in dispute that, that the O.P.No.1 is the manufacturer of the Chevrolet Enjoy TCDI LS vehicle and O.P No.2 being a dealer/distributor/agent of the O.P No 1 who is the manufacturer of the said motor vehicle. It is also not in dispute there is an agreement between the manufacturer and dealer and same is to operate on principal to principal basis. It is also not in dispute that the complainant purchased the vehicle in question from the O.P.No.2 on 31.10.2013. Further it is not in dispute that the complainant has given the vehicle for repair many a times to the O.P.No.2 service center. As per the agreement O.P.No.2 has to repair the vehicle at their service center.
12. The sole allegation of the complaint is that the vehicle in question while running is getting off of the engine and though he had given it for repair to the O.P.No.2 on several occasions as stated in the complaint and it caused mental agony, pressure and fell into loss and it leads to default in paying the monthly installments to the O.P.No.3 bank. Hence the complainant demanded for the replacement of the new vehicle.
13. Per-contra, O.P No.1 denied the allegations made in the complaint and contended that, since 31.10.2013 from the date of purchase the complainant used the vehicle till 11.06.2015 for total of 82306 kms and thereafter continuous to used it as a Taxi. It is also contended that on 11.06.2015 the complainant brought the vehicle for servicing for the first time and it was noticed that complainant has removed on refixed the fuel pump a relay and same was not done properly it leads to further complications. The complainant has breached the terms and conditions of the warranty by getting the pump relay and refixing the same at unauthorizedly. Hence contended that though complainant was informed about the refixing of the pump relay it may lead to further complications and malfunctioning of fuel tank pump and high pressure pump. Finally on 23.06.2015 the high pressure fuel pump was replaced under the warranty and without charging the complainant for the same.
14. It is worth to note that, it is the saying of the complainant on the date of purchase itself and while on test drive the vehicle in question shown the defect of sudden getting off of the engine. However the complainant did not place any credible evidence in order to show that the vehicle is a defective on the day of purchase itself. Furthermore on perusal of the records the complainant given it to the repair on 11.06.2015 and thereby noticed about the removed and refixed fuel pump relay and the same was not done as contended by the complainant which leads to further complications, whereas the complainant did not whisper in his complaint or in his evidence about the removed and refixed fuel pump relay and breached the terms and conditions of the warranty by getting pump relay and refixing the same as unauthorizedly. However though the burden is on the complainant to prove the defect in the engine getting off, but the complainant did not place any rebuttable evidence or credible evidence to disbelieve the contention of the O.P.No.1. On perusal of the entire complaint and the evidence placed on record the complainant did not disclose that he has used the vehicle as a Taxi and also not mentioned how many kms the vehicle runs so far, however O.P.No.1 contended that since the date of purchase i.e. 31.10.2013 till 11.06.2015 the vehicle runs for a total of 82306 kms and the complainant also not specifically denied the same. Hence the contention of the O.Ps is acceptable one. If the vehicle from 31.10.2013 to 11.06.2015 runs for 82306 kms that to using as a Taxi and the said vehicle no doubt comes for repairs. Further the complainant has also not denied specifically the fuel pump replaced unauthorizedly as contended by the complainant which might lead to complications for which O.Ps are not liable for the contrary act of complainant against to terms and conditions of the warranty. It is worth to note that, complainant has also not examined any expert in order to establish that there was the manufacturing defect in the vehicle to upheld the allegations of the vehicle. In the absence of the vital and credible evidence, the allegations of the complainant are lame of strength and holds no water.
15. Further on perusing the documents filed by the complainant in support of his evidence i.e. retail invoice discloses that complainant was purchased the vehicle on 31.10.2013 and on perusal of different job cards complainant given the service of the vehicle for general running and other problems. Also on perusal of the legal notice got issued by the complainant dated 27.07.2015 is sought for replacement of the vehicle without any valid ground and all these documents is not helpful to the complainant to prove his case. Further O.P.No.3 is a bank which advanced the loan to the complainant it is the duty of the complainant to pay back the loan amount installments as agreed and nothing to do with the present complaint. Hence O.P.No.3 Bank is made unnecessary party to the proceedings.
16. In the light of above discussion, we reach to conclusion that complainant failed to prove deficiency in service on the part of the O.Ps and hence complainant is not entitled for any relief as sought in the complaint. Accordingly, we answered the Points (A) and (B) in the Negative.
POINT No. (C):
17. On the basis of answering the Points (A) & (B) in the Negative, we proceed to pass the following:-
ORDER
1. The complaint hereby is dismissed. No order as to cost.
2. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 28th Day of September 2017)
MEMBER MEMBER PRESIDENT
