Delhi

North East

CC/31/2014

Sh. Vishal Handa - Complainant(s)

Versus

M/S Maruti Suzuki India Ltd. - Opp.Party(s)

19 Jul 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 31/2014

 

In the matter of:

 

	Sh. Vishal Handa S/o Sh. B.K. Handa R/o C-80, Main Gali No.7 West Jyoti Nagar, Delhi-110094	Complainant
	Versus
1.       2.	M/s Maruti Suzuki India Ltd. Palam Gurgaon Road, Gurgaon-122015 Through its Managing Director.   M/s Fair Deal Cars Pvt. Ltd Showroom at 485A, Main G.T. Road, Jhilmil, Shahdara, Delhi-110095. Through its Proprietor	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

30.01.2014 17.07.2018 19.07.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The case of the complainant is that he had purchased a car make Maruti Zen Estilo LXI-CNG chassis No. MA3EMDEIS00380085 bearing Engine No. K10BN4433117, S- White Colour vide invoice no. 1162 from OP2 (manufacturer) who is an authorized dealer of OP1 on 05.09.2012.  It has been submitted by the complainant that just after purchase of the said car, it was found that the above vehicle could not run fast smoothly and there was bubbling / vibrating during the driving of vehicle even at the speed between 60-80 Km per hour. Accordingly a complaint was made to OP2 and it was noted down by the staff of OP2 on the job card at the time of service of vehicle but the fault could not be repaired by OP2 and the problem persisted. It was stated by the complainant that there was no satisfactory answer / service by OP2 till date despite leaving the vehicle of the complainant at the workshop of OP2 several times for removing the fault as mentioned above. Accordingly, some engineer/technician having knowledge regarding the complaint raised by the complainant was called by the OP2 from Apollo Tyre Ltd Ghaziabad U.P. who inspected the said vehicle and checked the problem of vibration / bubbling by changing the tyres of vehicle with tyres of a new vehicle but the fault could not be located or removed and a report dated 31.10.2013 to this effect was given by the said engineer duly signed. Thereafter the complainant sent a written complaint to OP1 on 22.11.2013 and 09.12.2013 but no reply was received by the complainant and were unheeded to by OPs and as such the complainant had no option but to serve the legal notice to the OPs on 20.12.2013. It was further submitted by the complainant that OPs did not reply to the said notice and also did not pay any heed to remove the defects from the said car or change the same car with another one. According to the complainant, the problem of vibration is not a minor problem and it may cause any damage to the person and property of the complainant at any point of time while driving the said vehicle. The complainant is a business man and he had purchased the said car for his convenience and for his comfort but OP2 delivered a defective car which is quite painful and the complainant cannot perform his work properly and is always under great apprehension of mishap every time. Further the complainant had spent a huge amount and suffered losses due to deficient service. Therefore, complainant was constrained to file the present complaint against the OPs praying for issuance of direction by this Forum against them to exchange the vehicle in question or refund the cost thereof to the tune of Rs. 4,28,174/- to the complainant, pay compensation of Rs. 2,00,000/- to the complainant for mental pain, agony and financial losses and Rs. 25,000/- payable by the OPs to the complainant towards the litigation charges.  

The complainant has annexed a copy of legal notice dated 20.12.2013 addressed to OPs with postal receipts, copy of letter dated 22.11.2013 addressed to OP1 complaining about vibration / bubbling in the car requesting to get his car repaired properly, copy of retail invoice no. 1162 dated 05.09.2012 amounting to Rs. 4,28,174/- for purchasing the above car from OP2, copy of Product Inspection Report dated 31.10.2013, copy of jobcards dated 05.10.2012 and 04.09.2013 had also been attached.

2. Notices were issued to the OPs on 04.02.2014 for appearance before this Forum on 05.03.2014. Despite receiving the copy of complaint alongwith annexures on 05.03.2014, OP2 did not appear thereafter and therefore vide order dated 22.04.2014 was proceeded against ex-parte. OP1 filed its written statement on 26.03.2014. In its written statement, OP1 took the preliminary objection that the complainant has failed to set out any specific allegation in the complaint against OP1 and has no case for deficiency in service or unfair trade practice as defined under section 2 (1) (g), (o) & (r) of the Consumer Protection Act, 1986 and relied upon judgment of Hon’ble Apex Court in the matter of Maruti Suzuki India Ltd. Vs Purusottam Lal and Ors Civil Appeal No. 708 of 2017 decided on 22.07.2010, wherein it was held that ‘before this consumer can get any remedy against the appellant from the Fora  set up under the Act, it must establish that there is some deficiency of service by the appellant. Both the concepts ‘deficiency and service’ have been defined under section 2 (g) and 2 (o) respectively of the Act. After going through those definitions carefully, the Hon’ble Apex Court did not find that the complaint for alleged non-delivery vis-à-vis the appellant is covered under section 2 (g) and 2 (o) of the Act’ and had dismissed the complaint in Limine.  OP1 further took the defence that liability of OP1 under the warranty policy as enumerated in Owner’s Manual and Service Booklet has been duly discharged and the subject vehicle was defect free and in perfect OK and road worthy condition. OP1 further took the plea that the complaint was bad for non-joinder of manufacturer of tyres i.e. Apollo Tyre Ghaziabad U.P. and even otherwise tyres and tubes were outside the warranty as per clause 4 (b) of warranty. Further the subject vehicle had undergone all checks and then given FCOK (Final Check OK) by OP1 before dispatching to OP2. OP1 also submitted that OP2 carried out Pre-Delivery Inspection (PDI) including Road Test, ensuring perfect OK road worthy condition of vehicle in question at the time of sale, leaving no place for defects in vehicle. Apart from this standard warranty terms of sale contract pertaining to OP1 limited to 24 months or 40,000 KM from date of purchase, OP1 stated that this warranty was not absolute and was subject to certain terms and conditions and limitation in Owner’s Manual and Service Booklet.  The OP1 reiterated that the complainant took the vehicle delivery to his entire satisfaction and without any protest or demur. OP1 further denied the subject car giving/having any bubbling/vibration problem since it was a FCOK / PDI certified vehicle free from defects and no such complaint was reported by the complainant at the time of free service/ first free inspection at the workshop at OP2 at Sahibabad on 05.10.2012 at 741 KMs when performance of vehicle was found as per standards and service carried out as per service schedule to satisfaction of the complainant. OP1 urged that the alleged wobbling may have been due to improper balancing / alignment of wheels, air pressure (over inflation of tyres). OP1 also took the plea that the complainant sent the vehicle to workshop of Competent Auto Mobiles Co. Ltd Ghazipur on 11.03.2013 at 2624 KMs when no allege problem / abnormality was observed in the said vehicle and normal service as per periodic maintenance schedule was carried out thereof. Thereafter the complainant sent the subject vehicle to OP2 for third free inspection service on 04.09.2013 at 5005 KMs when again no such problem was reported / detected in the said vehicle and complainant took the said vehicle after routine service having the carried out to his satisfaction without any demur. OP1 urged that complainant has failed to substantiate his case/allegation against the OP1 and therefore no such allege problem was even observed by experts service engineer of workshop even. OP1 further stated that on complainant reporting problem to OP2 about the tyres, OP2 called the experts service engineer on 24.10.2013 at its workshop when the car was brought there at 6651 KMs by complainant where it was inspected in presence of complainant and performance of car was found to be Defect Free as per said standards after comparing it with new vehicle of same model. OP1 also submitted that warranty excludes sound, vibration and fluid seep and report of Apollo tyres Ghaziabad (manufacturer of tyre) confirmed no manufacturing defect and therefore OP1 urged that complainant is not entitled to replacement of vehicle or relief from this Forum. The OP1 urged that it is world renowned for providing services of international quality and stood first 14 times in a row in a survey conducted by JD Power Survey. Lastly OP1 took the defence that the complainant having accepted the delivery of vehicle in accordance with term of sale contract and acceptance of terms of warranty was bound by terms and conditions of warranty as per Owner’s Manual and cannot demand anything beyond warranty obligation of OP1. The complainant has failed to make out a case of deficiency of service against OP1 without any cogent, convincing and conclusive evidence and therefore OP1 prayed for dismissal of present complaint as being devoid of merits and relief sought with ulterior motive.       
3. Rejoinder to the written statement of OP1 was filed by the complainant wherein complainant reiterated his grievance and controverted the defence taken by OP1 in its written statement summarily. Evidence by way of affidavit was filed by the complainant reaffirming his complaint and grievance made out against the OPs therein.
4. Evidence by way of affidavit was filed by OP1 wherein OP1 exhibited Dealership Agreement in support of its contention that the relationship between OP1 and OP2 is on principal to principal basis, jobcards dated 05.10.2012, 11.03.2013, 04.09.2013 and 24.10.2013 and copy of warranty policy.
5. Matter was listed for filing written arguments on 27.11.2015 when   written arguments were filed by the OP1 reiterating its defence in the light and support of various judgments relied upon passed by Hon’ble Apex Court, Hon’ble NCDRC and various State Commissions. However, complainant neither appeared thereafter in the proceedings before this forum nor filed written arguments.
6. On 06.04.2018 OP1 filed additional evidence by way of affidavit placing on record vehicle particulars issued by State Transport Department (Loni), GNCTD on 07.02.2018 about the transfer of ownership of vehicle in question / subject matter in dispute which was sold by the complainant on 01.11.2017 to one  Shri Visheshwar Nautiyal R/o D-350/12 Gali No.12 Block D, Laxmi Nagar East Delhi 92 during the pendency of the present complaint before this Forum and original vehicle particulars duly stamped / sealed and signed by the registering authority Loni confirming the above transaction has been attached therewith.

It is settled law in catena of judgments that once vehicle is sold during pendency of the complaint, the complainant ceases to be a consumer for the purposes of Consumer Protection Act and has no locus to agitate grievance against the OPs. In the recent judgment of Hon’ble NCDRC in M/s Honda Cars India Ltd Vs. Jatinder Singh Madan IV (2013) CPJ 258 (NC), the Hon’ble National Commission dealing with a similar case, relied upon its previous judgments in Tata Motors Ltd. Vs Hazoor Maharaj Baba decided on 25.09.2013 and Hoshiarpur Improvement Trust Vs Major Amrit Lal Saini I (2008) CPJ 249 (NC) as also in the judgment of Rajeev Gulati Vs M/s Tata Engineering and Locomotive Co. Ltd & Ors III (2013) CPJ 273 (NC) held that the present complaint was liable to be dismissed on this sole count of the complainant having sold the vehicle inquestion during pendency of the complaint, no longer remaining a consumer.

7. In view of the settled law on the said issue and on the basis of perusal of copy of registration certificate proving beyond reasonable doubt factum of transfer / sale of vehicle in question by the complainant to Visheshwar Nautiyal during pendency of the present complaint, the complainant ceases to be a consumer or have any locus as a juristic person under Consumer Protection Act and therefore no cause of action accrues in his favour. Therefore the present complaint is dismissed as non-maintainable / un- enforceable against the OPs.  
8. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on 19.07.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member