BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.349 of 2014

Date of Instt. 13.10.2014

Date of Decision :28.07.2015

Vishal Sharma aged about 29 years son of Chaman Lal Sharma, R/o House No.33, Durga Vihar, Phase-II, Hoshiarpur Road, Jalandhar.

..........Complainant Versus

1. M/s Maruti Suzuki India Ltd, Palam, Gurgaon Road, Gurgaon-122015, (Haryana) through its Managing Director/Chairman.

2. Swani Motors Pvt Ltd, near BMC Chowk, GT Road, Jalandhar through its Managing Director/Chairman.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Nipun Bajaj Adv., counsel for complainant.

Sh.Arun Gupta Adv., counsel for OP No.1.

Sh.PS Sidana Adv., counsel for OP No.2.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the opposite party No.1 is a public limited company engaged in the business of manufacturing of motor cars under the brand name Maruti Suzuki and opposite party No.2 is the authorized dealer/distributor of opposite party No.1 for sale of automobiles cars, manufactured and marked by opposite party No.1 under the brand Maruti Suzuki. Complainant purchased one car manufactured by opposite party No.1 from opposite party No.2 vide invoice of opposite party No.2, vide No.VSL 13001111 dated 31.12.2013 having key No.6062. The said car namely Maruti Swift VDI BS IV-SMRDCD2, was having engine No.D 13A 0457559, chasis No.MA3FHEB1S00564786 and was having pearl metallic arctic white ZHJ colour for a value of Rs.6,09,556/-. Just within purchase of two months of car, the complainant observed that the engine of the car seize on reaching the car at speed of 80 KM. Complainant immediately approached the opposite party No.2 and pointed out the defect therein. At the very first instance, the staff of opposite party No.2 described it misconception/false notion and asked complainant to continue use of vehicle, but when complainant again tried the vehicle on GT Road at the speed of 80 KM, he noted the same problem and he was escaped from the accident by his skilled driving. Complainant again approached the workshop of opposite party No.2 to check the engine thoroughly. On checking of engine, the maintenance staff of opposite party No.2 found inherent defects in the engine and prepared the report, which was also sent to the opposite party No.1 through internet mail as well as CD derive, as informed by them. As a layman, complainant was informed that the cylinder head, which is back bone of car engine, is defective and the problem has occurred in a lot which the opposite party No.1 manufactured itself in its own unit. Complainant was further informed that earlier in collaboration with Fiat Company, the company was getting engine from the Fiat company and getting the same fitted in their cars, but for the last few months, the company has commenced manufacturing of the engine and being new in the field of diesel engines, the problem has occurred in the car engines and this engine (fitted in the car of the complainant) might be of that lot. Complainant was further informed that while sending the report to opposite party No.1, they have recommended for change of engine/car to the opposite party No.1 and they will get the response in this regard within two months, as the matter is to be discussed within higher authorities, but now after lapse to two months, complainant has been informed that they have not received any intimation in this regard. Since there was an inherent manufacturing defect in the car which could not be rectified through ordinary service/repair, the complainant then served the opposite parties with a legal notice dated 27.8.2014, asking them to provide him a new car by replacing the old one and in case, it is not possible, to replace the engine of the car with new one. No reply of the said notice was received from the opposite party No.1, however a reply was received from opposite party No.2 through their advocate Sh.Prabhjot Singh Sidana, wherein they admitted defects in the engine of the car and agreed to repair the car engine. Telephonic message was also received from opposite party No.2, wherein they asked the complainant to get the car repaired by getting the cylinder head changed from the other authorized dealer of opposite party No.1, i.e Lovely Autos. The complainant again approached the opposite parties through the other dealer/distributor i.e M/s Lovely Autos and requested them for redressal of his grievances, but without any fruitful result. On such like averments, the complainant has prayed for directing the opposite parties to replace the car in question with new one or in the alternative to replace the engine of the car with new one. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed their written replies. In its written reply, opposite party No.1 pleaded that the opposite party No.2 is one of the dealers to deal in Maruti Suzuki products as per the dealership agreement executed between the opposite parties. The relationship between the opposite party No.1 and dealers including the opposite party No.2 are governed by the terms and conditions of dealership agreement and is based on Principal to Principal basis. The vehicle given to the complainant was brand new and defect free. All the vehicles which are manufactured are sent to the dealer only after passing the FCOK test. The complainant after satisfying himself with the working of the car had taken the delivery as is evident from the vehicle history. It is relevant to mention here that the opposite party No.1 being the manufacturer of the vehicle stands warranty for a certain period and subject to certain terms and conditions as set out in the owners' manual and service booklet supplied to the complainant at the time of delivery. For obtaining the warranty benefits, the complainant was required to bring the complete vehicle at workshop and demand/point out the specific defect. The complainant sent the vehicle in question to the workshop on 4.2.2014 at 1268 KMs and 6.5.2014 at 6114 for Ist and 2nd free services. The complainant did not pint out the alleged defect on the said occasions. It is therefore false to allege that the engine of the car seized while reaching at a speed of 80 KM/hr within two months. On the contrary, the complainant was negligent in proper maintenance of the vehicle. As per schedule of periodical maintenance attached with the owner's manual and service booklet, the complainant was required to bring the vehicle at the workshop for Ist, 2nd and 3rd routine maintenance services on 1000, 5000 and 10000 Kms whereas the complainant availed the said services at 1268, 6114 and 14104 Kms. Hence, the vehicle in question is victim of poor maintenance at the hand of complainant. It is further submitted that the complainant has not approached the Forum with clean hands and has concealed the material facts with ulterior motives. The complainant brought the vehicle in question to the workshop at 15640 Kms on 31.7.2014 and pointed out the alleged defect. The service engineer inspected the vehicle as per the terms and conditions of warranty. In order to arrest the alleged defect, the territory service engineer suggested changing of cylinder head assembly of the vehicle. But the said replacement could not be made on the same day by opposite party No.2 due to unavailability of the part and advised the complainant to bring the vehicle on the intimation by opposite party No2. The complainant, instead of bring the vehicle at the workshop of opposite party No.2 as advised, has filed the present complaint and refused to bring the vehicle for carrying out the suggested replacement. The opposite parties never refused to fulfill its warranty obligations as per the terms and conditions of the warranty. However, opposite party No.2 advised to replace the desired part as the matter of goodwill and good gesture. It is denied that there is/was any manufacturing defect and the complainant has no cause of action against the opposite party No.1 to file any complaint or to issue any legal notice at a pre-mature stage. The complainant is bound by the terms and conditions of warranty and refusal to get the warranty benefits amount to waiver of warranty on the part of the complainant. As per vehicle history, the car in question has completed 15640 KMs on 31.7.2014 within seven months from the date of delivery which shows that the complainant fully used the car in question and has made false averments. It denied other material averments of the complainant.

3. In its separate written reply, opposite party No.2 pleaded that the complainant was not facing any such problem earlier, the opposite party No.2 was servicing the vehicle properly and the same problem as alleged by the complainant was never reported to the opposite party No.2 at the time of getting the service of the vehicle done within the two months of the purchase of the vehicle. As per the history sheet available of the concerned vehicle, the said problem was notified with the opposite party No.2 after seven months of purchase of the vehicle i.e on 31.7.2014. The vehicle might be facing such problem as reported by the complainant and when it was brought into the knowledge of opposite party No.2, they immediately came into action to find the problem, and the action to rectify the same was taken by them. It is pertinent to mention over here that when the complainant brought to the knowledge of opposite party No.2, they immediately found the cause of problem which is suspicious/doubtful that Valve, Intake and Valve, Exhaust might not be working properly and the action to rectify the same was taken by the opposite party No.2 to bring into the knowledge of opposite party No.1 being the manufacturer. The complainant was never informed about the cylinder head defect or that the problem occurred in a lot of opposite party No.1 in their unit. It is pertinent to mention over here that no cylinder head was defective one, only it was suspicious/doubtful that Valve, Intake and Valve, Exhaust might not be working properly hence the same need to be replaced to rectify the problem. The opposite party No.2 immediately informed to the opposite party No.1 and discussed the matter with the manufacturer to rectify the problem as the concerned parts which needed to be replaced were to be sent by the opposite party No.1 to the opposite party No.2 but no recommendation regarding the change of engine/ car was ever made by opposite party No.2 to opposite party No.1 as alleged by the complainant. The opposite party No.2 replied the legal notice of the complainant and requested them to get their car repaired by getting the particular part changed from the opposite party No2. The complainant is exerting pressure on the opposite party No.2 to accede its unjustified demand to get the car replaced with the new one. It denied other material averments of the complainant.

4. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavits Ex.CA to Ex.CC alongwith copies of documents Ex.C1 to Ex.C11 and closed evidence.

5. On the other hand, learned counsel for the opposite parties No.1 has tendered affidavit Ex.OP1/A alongwith documents Ex.OP1 to Ex.OP3 and closed evidence. Further learned counsel for opposite party No.2 has tendered affidavits Ex.OP2/A to Ex.OP2/D alongwith copies of documents Ex.OP2W1/1 to Ex.OP2W1/6, Ex.OP2W2/1 to Ex.OP2W2/3, Ex.RW1/1 to Ex.RW1/6, Ex.OP2W3/1 to Ex.OP2W3/9 and closed evidence.

6. We have carefully gone through the record and also heard the learned counsels for the parties and further gone through the written arguments submitted on behalf of complainant and opposite party No.2.

7. Counsel for the complainant contended that car which was sold to the complainant was having inherent manufacturing defect in its engine. He further contended that in the written reply opposite party No.2 has clearly admitted that the vehicle might be facing such problems as are reported by the complainant and that they immediately came into action to find the problem and to rectify the same. He further contended that this admission of opposite party No.2 clearly prove that there is inherent defect in the car engine. He further contended that the averments of opposite party No.2 that it immediately informed to opposite party No.1 and discussed the matter with the manufacturer to rectify the same as concerned parts, which needs to be replaced, was to be sent by the opposite party No.1 to opposite party No.2, clearly prove that there is major inherent defect in the engine. We have carefully considered the contentions advanced by learned counsel for the complainant. In substance the allegations of the complainant are that when the car used to reach at the speed of 80 KM per hour, its engine would seize and he took the car to opposite party who thoroughly checked the engine and maintenance staff of opposite party No.2 found inherent defect in the engine. Further according to the complainant he was informed that the cylinder head, which is back bone of car engine, is defective and the problem has occurred in entire lot manufactured by opposite party No.1. So main question which falls for determination is, whether there is manufacturing defect in the car of the complainant? The opposite parties have produced vehicle service history Ex.OP2W1/6. At the time of first service, the demanded repairs are mentioned as steering hard and dirty under body-polishing. At the time of second repair demanded repairs are mentioned as librication, steering hard check, technical compaign-fuel fill pipe change. However, in its written reply, opposite party No.2 has pleaded that the complainant brought the vehicle in question to the workshop at 15640 Kms on 31.7.2014 and pointed out the alleged defect and the service engineer inspected the vehicle as per the terms and conditions of warranty and in order to arrest the alleged defect, the territory service engineer suggested changing of cylinder head assembly of the vehicle. This fact is mentioned in the document attached with job card Ex.C4 of 3rd free service. In its written reply, opposite party No.2 has not admitted that there was any manufacturing defect in the vehicle. The averments of opposite party No.2 that they immediately found the cause of problem which was suspicious/doubtful Valve Intake and Valve, Exhaust might not be working properly and same need to be replaced to rectify the problem, in no way can be construed as admission of opposite party No.2 regarding manufacturing defect in the engine. Opposite party No.1 in its written reply has specifically mentioned that territory service engineer suggested changing of cylinder head assembly of the vehicle. It is further in its written reply that opposite parties never refused to fulfill its warranty obligations as per the terms and conditions of the warranty. It is further in its written reply that opposite party No.2 was advised to replace the desired part as matter of goodwill and good gesture. So the opposite parties have not refused to replace the cylinder head assembly. Ex.OP2W3/9 is warranty policy. As per warranty policy, if any defect is found in the vehicle within warranty period, the only obligation on its part is to repair or replace any part shown to be defective, with a new part or the equivalent at no cost to the owner for parts or labour. The law regarding manufacturing defect is well established. In Classic Automobiles Vs. Lila Nand Mishra and Others 2010(2)CLT367 it has been held by Hon'ble National Commission as under :

The onus to prove that there was manufacturing defect was on complainant No.1. We agree with the contentions raised by learned Counsel for the petitioner that complainant No.1 failed to prove that there was any manufacturing defect by producing any cogent evidence.

Complainant failed to produce expert evidence as provided under Section 13(1)(c) of the "Consumer Protection Act, 1986 which provides as under :

(c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer form any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum.

The District Forum could have appointed an expert of its own, based upon whose findings, a finding could be recorded with regard to the manufacturing defect. In the absence of any expert evidence, merely on the fact that the car was repeatedly brought to the service station for repairs/rectifications, it cannot be held that there was a manufacturing defect in the car. Whenever the car was brought to the service station, it was attended to by the petitioner. The petitioner is the service provider of the car and Counsel for complainant No.1 was unable to show any deficiency in service on the part of the petitioner in attending to the car whenever it was brought to the petitioner's service station". In Sushila Automobiles Pvt.Ltd. Vs. Dr.Birendra Narain Prasad & Others. III(2010)CPJ130(NC) it has been held by Hon'ble National Commission as under :

The State Commission has failed to consider that the complainant had not been able to discharge its onus to prove the manufacturing defect. He neither produced any expert opinion nor could prove from the records such as the job cards that the vehicle suffered from manufacturing defect. There is no rebuttal to the allegation of accident. Merely because the accessory was not supplied in the beginning and that the vehicle suffered form some minor defects, which, however, were attended to by the Opposite party, the State Commission has completely erred in holding that the vehicle suffered from manufacturing defect warranting its replacement. In the case of Surrendra Kumar Jain Vs. R.C.Bhargava and Ors. III(2006)CPJ382(NC) even when the complainant had filed a report of one O.P.Singh stating that the radiator was found to be leaking from the bottom tank and had been replaced, this Commission had taken the view that as many as 11 visits to the workshop notwithstanding minor defects cannot be said to be manufacturing defect. The defects in the car, as rightly held by the District Forum, were minor in nature and cannot be said to be in the nature of manufacturing defects. For the non-supply of the accessory kit, the complainant has been duly compensated by the District Forum.

In fact the Hon'ble Supreme Court in the case of Maruti Udyog Ltd. Vs. Susheet Kumar Gabgotra & Ans. II(2006)CPJ3(SC)=(2006)4SCC644 has held that where defects in various parts of a car are established, direction for replacement of the car would not be justified. "Replacement of the entire item or replacement of defective parts only called for."

8. The complainant has tendered affidavit Ex.CC of Vipan Kumar, Diesel Mechanic, who has stated that on the basis of his experience of more than 12 years, he can say that there is inherent defect in the car engine and that it is always advisable that in such situation, the engine of the car should be replaced. On the other hand, opposite party No.2 has tendered affidavit Ex.OP2/A of Harwinder Singh who in his affidavit stated that he has worked as mechanic as well as supervisor with opposite party No.2 since 1.1.2006. It is further in his affidavit that he did the diploma in Motor Vehicle Mechanic from Training of Technology in the year 1999 and produced the copy of certificate Ex.RW1/1. It is further in his affidavit that he certified Bronze Master by M/s Maruti Suzuki India limited and produced copy of certificate Ex.RW1/2. In his affidavit he has further stated that complainant was not facing such problem earlier and opposite party No.2 was servicing the vehicle properly and the same problem as alleged by the complainant was never reported to the opposite party No.2 at the time of getting the service of the vehicle done withing two months of the purchase of the vehicle. It is further in his affidavit that as per history sheet available of the concerned vehicle, the said problem was notified with the opposite party No.2 after seven months of purchase of the vehicle i.e on 31.7.2014. It is further in his affidavit that inspection made by the technical experts of opposite party No.2, it was suspicious/doubtful that Valve, Intake and Valve, Exhaust might not be working properly due to which the vehicle might be facing the some problem at different speed level and it wrong and incorrect that car in question was having inherent manufacturing defect. It is further in his affidavit that defect, if any, in the car is repairable. So there is no reliable expert evidence on record from the side of the complainant to prove that there is any manufacturing defect in the car in question. If there is any defect in any part of the car then as per warranty terms and conditions the liability of the opposite parties is to replace or repair the defective part. In our opinion, the complainant is not entitled to replacement of the car or its engine. It is in written arguments of opposite party No.2 that now it is not authorized dealer of opposite party No.1 at Jalandhar since 15.11.2014. Hence the complainant get its car repaired from other authorized dealer of opposite party No.1 or complainant is welcome to get the above said part replaced from M/s Swani Motors Pvt Ltd, Amritsar with understanding of opposite party No.1.

9. In view of above discussion, the complaint is partly accepted and opposite party No.1 through its any service centre is directed to fully repair the car of the complainant free of cost by replacing the defective parts of the engine, if any, within one month from the date of receipt of copy of this order. The complainant shall approach the opposite party No.1 or service centre of opposite party No.2 at Amritsar or any other service centre of opposite party No.1 at Jalandhar as may be recommended by it for the above purpose. However, the complainant is awarded Rs.15,000/- on account of compensation and further Rs.3000/- on account of litigation expenses. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

28.07.2015 Member Member President