DISTRICT CONSUMERDISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 53 of 18.2.2008 Decided on : 16.5.2008 <br /> <br /> Chhinder Pal Singh S/o Sh. Kartar Singh, R/o Quarter No. A-25, Civil Lines, Bathinda.<br /> .... Complainant<br /> Versus<br /> <br /> 1.M/s. Maruti Suzuki Limited through its C.E.O., Head Office Gurgaon (Haryana)<br /> 2.M/s/ Tara Automobiles, through its Manager, Opposite ITI, Mansa Road, Bathinda.<br /> ..... Opposite parties<br /> <br /> Complaint Under Section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. N.K Jeet, Advocate<br /> For the opposite parties : Sh. Sanjay Goyal, Advocate<br /> <br /> O R D E R. <br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Alto LX BS III passenger car having Chassis No. 1064239 and Engine no. 1204268 manufactured by opposite party No. 1 was purchased by the complainant on 15.11.2007 for a consideration of Rs. 2,72,000/-. A sum of about Rs. 25,000/- was spent by him for its registration and for getting the accessories fitted in it. Warranty for a period of one year was provided on the car. Soon after the day of purchase, it started giving trouble due to manufacturing defects. On 12.12.2007, when the car was taken for first service to opposite party no. 2, defective working of the car was brought to its notice. He was assured that defects were of minor nature and would be rectified at the earliest. On 31.12.2007, car was again taken to opposite party No. 2 for repairs. Following defects amongst others were pointed out:<br /> ( i ) Average mileage per litre fuel was low.<br /> ( ii ) Gears were giving noise<br /> ( iii ) Pick-up was poor<br /> ( iv ) There was play in gear levels.<br /> Assurance was given by opposite party No. 2 to remove the defects, but to no effect. On 7.1.2008, complainant had again paid visit to opposite party No. 2 as the Engine of the was knocking and misfiring. Some repairs were done by opposite party No. 2, but the faults continued persisting. On 12.1.2008, knocking and misfiring of the engine became acute. Car was taken to opposite party No. 2 to find out the reason for recurring faults. Again some repairs were done, but the faults of knocking engine and misfiring could not be cured. Complainant was told that engine would have to be opened and some of its parts would have to be replaced. Opposite party No. 2 was requested to replace the car as it was having manufacturing defect in the engine which were detected during the warranty period. He was told that he would have to consult opposite party No.1. Car was handed over to opposite party No. 2 on that day i.e. 12.1.2008 for getting it replaced. Opposite party No. 2 has failed to rectify the faults till now. After consulting opposite party No. 1, opposite party No. 2 intimated on 23.1.2008 that they would replace the parts of the engine, but could not replace the car. This offer was declined. Request was made to opposite party No. 2 to replace the car due to manufacturing defects in its engine. Once the engine is opened, car looses its value. Again opposite party No. 2 was requested either to replace the car or refund its price alongwith interest @ 18% P.A, but his request was not acceded to. In these circumstances, he alleges deficiency in service on the part of the opposite parties. Accordingly, complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred seeking direction from this Forum to opposite parties to replace the car with a new one or in the alternative refund its price alongwith interest @ 18% P.A; refund the registration charges and the expenses incurred by him in providing various accessories in the car amounting to Rs. 25,000/-; pay Rs. 50,000/-for deficiency in service; Rs. 50,000/- for mental agony, harassment, pain and sufferings and Rs. 11,000/- as litigation expenses.<br /> 2. On being put to notice, opposite party No. 1 filed its version taking preliminary objections that the allegations do not constitute any consumer dispute and as such, this Forum has got no jurisdiction to entertain and try the complaint; complaint is without any cause of action. It is averred by it that dealers at the time of sale to their customers carry out final pre-delivery inspection in their presence for making sure that the vehicle is safe and in perfect O.K condition. Vehicle in question has undergone all the checks. Complainant had brought the car to the workshop of opposite party No. 2 on 12.12.2007 for the first free service. It was a normal routine service for change of engine oil and filter. It denies that minor defects in the car were acknowledged. Complainant had again brought the car to opposite party No. 2 on 31.12.2007 for running repairs. Alleged defects were checked as per warranty terms and vehicle was found O.K. It denies that the defects continued persisting. Inter-alia, their plea is that on 12.1.2008, complainant had left the vehicle in the workshop of opposite party No.2. He was illegally demanding its replacement. He had refused to give authorisation to opposite party No. 2 for attending his vehicle. There is denial that engine is having manufacturing defects and for that opposite party No. 2 had advised the opening of the engine and replacing of its parts. Vehicle was in perfect O.K condition at the time of delivery and also until first free inspection/service. Alleged defects were pointed out for the first time on 31.12.2007. They were attended by opposite party No. 2 and car was found O.K. Complainant on the one hand is making allegations that opposite party No. 2 has failed to rectify the alleged faults and on the other, he is unwilling to give authorisation for attending the vehicle. After waiting for long period and giving several reminders to the complainant, part has been replaced under warranty. This fact was communicated to the complainant vide letter dated 18.3.2008. Request was made to him to collect the vehicle from the Workshop immediately which is in perfect O.K. Condition. Complainant is not co-operating. Allegation of deficiency in service and unfair trade practice is denied.<br /> 3. Opposite party No. 2 filed separate reply of the complaint taking legal objections that complaint is not maintainable; complainant has got no locus-standi and cause of action; he is not consumer; complaint requires elaborate oral evidence as well as cross-examination and for that only civil court is competent; complainant has concealed material facts and complaint does not involve consumer dispute. Purchase of the car by the complainant on 15.11.2007 is admitted. Remaining pleas of this opposite party are akin to those taken by opposite party No. 1. <br /> 4. In support of his allegations and averments in the complaint, Sh. Chhinder Pal Singh complainant tendered into evidence his own affidavit (Ex.C.1), photocopy of Form No. 21 (Ex.C.2), photocopy of invoice (Ex.C.3), photocopy of Registration Certificate (Ex.C.4), photocopy of Vehicle History (Ex.C.5), photocopy of Order Card (Ex.C.6), photocopies of letters dated 23.1.2008 & 29.1.2008 (Ex.C.7 & Ex.C.10) and photocopy of Certificate-cum Policy schedule (Ex.C.9).<br /> 5. On behalf of the opposite parties, reliance is placed on affidavits (Ex.R.1 & Ex.R.6) of S/Sh. Baljit Singh Brar, Works Manager and Gurdeep Singh, Mechanic respectively, photocopy of his Diploma in Mechanical Engineering (Ex.R.2), photocopies of letters dated 18.2.2008 and 18.3.2008 (Ex.R.3 & Ex.R.4), photocopy of page No.2 of Warranty Policy (Ex.R.5) and photocopy of certificate (Ex.R.7). <br /> 6. We have heard the learned counsel for the parties. Apart from this, we have perused the record.<br /> 7. Some facts do not remain in dispute in this case. They are that Alto LX BS III passenger car was purchased on 15.11.2007 by the complainant from opposite party No. 2. Copies of Sale Certificate and Invoice are Ex.C.2 & Ex.C.3 respectively. Car was ultimately brought to the Workshop of opposite party No. 2 on 12.1.2008 and it was handed over to opposite party No.2. it was received by the complainant on 2.4.2008 under protest for test drive only. As stated at bar, now it is in possession of the complainant.<br /> 8. Mr. N.K. Jeet, learned counsel for the complainant vociferously argued that there is manufacturing defect in the car which could not be rectified by the opposite parties. He drew our attention to the affidavit Ex.C.1 of the complainant in which he has stated that car was taken by him on 2.4.2008 under protest and it is still giving trouble of misfiring and that intimation was given to opposite party No. 2 telephonically. He further argued that market value of the car has gone down as some pars of the engine have been changed as is evident from the Job Card Retail Cash Memo, copy of which is Ex.C.8. Hence, there is deficiency in service on the part of the opposite parties.<br /> 9. Mr. Goyal, learned counsel for the opposite parties submitted that there is no manufacturing defect in the car. This fact becomes evident from affidavit Ex.R.2 of Sh. Baljit Singh Brar, Works Manager and Ex.R.6 of Sh. Gurdeep Singh, Mechanic of opposite party No.2.<br /> 10. We have given our thoughtful consideration to the rival arguments. Car was first brought to opposite party No. 2 on 12.12.2007 for first inspection/service. Normal routine service was done and engine oil and filter were changed as is evident from the vehicle history, copy of which is Ex.C.5. Car was again brought to the Workshop of opposite party No. 2 on 31.12.2007. Following defects were pointed out:-<br /> ( i ) Average mileage per litre fuel was low.<br /> ( ii ) Gears were giving noise<br /> ( iii ) Pick-up was poor<br /> ( iv ) There was play in gear levels.<br /> Some defects were still there due to which complainant had to bring the car again to opposite party no. 2 on 7.1.2008. Complaint was of engine knocking and misfiring. Again on 12.1.2008, complaint was to this effect. Letter dated 23.1.2008 was issued by Sh. Mukesh Kumar, Works Manager of opposite party No. 2 to the complainant that fault was rectified and thereafter, vehicle has been tested. After reaching the Workshop, same place where problem was there was checked and as a proactive measure, they felt that this problem may occur again and on that account, they decided to replace the part. From all this evidence on the record, one thing is clear that brand new car purchased by the complainant on 15.11.2007 was not giving performance to his satisfaction. There were defects in it. Even opposite party No. 2 has admitted it in its letter dated 23.1.2008, copy of which is Ex.C.7. Had there been no defect in the car, what was the necessity for the complainant to come to opposite party No. 2 time and again and ultimately leave the car with it on 12.1.2008. Complainant has not led any expert evidence to prove that there is manufacturing defect in the car. Hence, conclusion cannot be arrived at that car has manufacturing defect, yet defects were persisting in the vehicle which could not be rectified by opposite party No. 2 till 12.1.2008 and immediately thereafter. Ultimately, opposite party No. 2 issued letter dated 18.3.2008, copy of which is Ex.R.4, intimating the complainant that it has replaced the part under warranty and car is in perfect O.K condition. As per letter Ex.R.4 part has been replaced on 18.3.2008. Before this date another letter copy of which is Ex.R.3 was sent to the complainant requesting him to get the vehicle repaired. If part could be replaced on 18.3.2008 without his consent, then there is no reason to why the defect could not be rectified prior to this day. Car has been taken by the complainant on 2.4.2008. He has not led any expert evidence that after 2.4.2008 the defects are still persisting and there is manufacturing defect in the car. Had the car been misfiring after 2.4.2008, complainant could take the car to opposite party No. 2 for getting it checked or could leave it with it for getting the defect removed.<br /> 11. In view of our forgoing discussion, crux of the matter is that new car purchased by the complainant was not free from defects. He was bringing the car to opposite party No. 2 time and again and defects could not be cured at the earliest. Ultimately, various parts including Head Assy Cylinder have been changed as is clear from Ex.C.8 and thereafter, car has been handed over to the complainant on 2.4.2008. He was unable to use the car as opposite parties failed to rectify the defects in the newly purchased car within reasonable time. Hence, there is deficiency in service on the part of the opposite parties. <br /> 12. Now question arises as to which relief should be accorded to the complainant. Learned counsel for the complainant argued that complainant is entitled to get the car replaced from the opposite parties as due to the replacement of some parts in it including Head Assy Cylinder, its market value has decreased or in the alternative, he is entitled to the refund of the price of the car alongwith interest. For this, he cited authorities Revision Petition No. 958 of 2007 titled as M/s. Hyundai Motors India Ltd. Vs. M/s. Affiliated East West Press (P) Ltd. & another decided on 29.11.2007 by the Hon'ble National Commission, Regional Sales Manager, Scooters India Ltd. Vs. Dipak Das & Ors.-SC Case No. 529/A/02 decided on 12.10.2004 by the Hon'ble State Commission of West Bengal and Bajaj Auto Limited & Another Vs. Sri A. Nageswar Rao & Another- CD Appeal No. 250 of 1998 decided on 19.6.2001 by the Hon'ble State Commission, Orissa, Cuttack. <br /> 13. Mr. Goyal, learned counsel for the opposite parties argued that no case is made out for replacement of the car or refund of its price alongwith interest.<br /> 14. These rival contentions have been considered by us. Admittedly, car is within the warranty period. Copy of the warranty policy is Ex.R.5. Warranty obligation of opposite party No. 1 is as under :-<br /> “Maruti's Warranty Obligation: <br /> If any defect(s) should be found in a Maruti vehicle within the term stipulated above, Maruti's only obligation is to repair or replace at its sole discretion any part shown to be defective, with a new part or the equivalent at no cost to the owner for parts or labour, when Maruti acknowledges that such a defect is attributable to faulty material or workmanship at the time of manufacture. The owner is responsible for any repair or replacement which are not covered by this warranty.” <br /> As per Ex.R.5, obligations of the opposite parties under warranty are only to repair or replace any part found to be defective. Accordingly parts have been replaced. With utmost regard and humility to the authorities relied upon by the complainant, they become distinguishable due to warranty obligations of the opposite parties. In view of the warranty obligations, replacement of the car or refund of its price with interest is not warranted. In this view of the matter, we are fortified by the observations of their Lordships of the Hon'ble Supreme Court in the case of Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Another-I(2006)CPJ-3(SC) in which it has been held that when obligations of the Respondents under warranty are only to repair or replace any part found to be defective and necessary repairs and replacement of components are carried out, Hon'ble High Court was not justified in directing replacement of the vehicle. Complainant is craving for compensation of Rs. 50,000/- for deficiency in service and another compensation of Rs. 50,000/- for mental agony, harassment, humiliation, pain and sufferings. As mentioned above,car started giving problems to the complainant soon after it was purchased. It was brought to the workshop of opposite party No. 2 on 12.12.2007, 31.12.2007, 7.1.2008 and 12.1.2008. Ultimately, it was left with opposite party No. 2 on 12.1.2008. Opposite party No. 2 has also admitted the defects in it through letter, copy of which is Ex.C.7. Ultimately, letter dated 18.3.2008 was issued to the complainant by opposite party No. 2 intimating that part has been replaced. Car was taken by the complainant on 2.4.2008. He could not make its proper use till 12.1.2008 as it was causing troubles. From 12.1.2008 onwards till it was received by him, he could not make use of it. He purchased this new car with his hard earned money. He has to knock the door of this Forum. It is during the pendency of this complaint that part has been replaced and thereafter, final letter dated 18.3.2008 was issued for handing over the car. Act and conduct of the opposite parties in not giving defect free car and not getting the defects removed within reasonable time due to which he could not make use of the car, must have caused him harassment, inconvenience, mental agony, pain and sufferings. In these facts and circumstances, he deserves compensation. In our view, apt and appropriate compensation in this case is Rs. 50,000/-. For this, we get support from the authority Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Another (Supra).<br /> 15. No other point was urged before us at the time of arguments.<br /> 16. In the premises written above, complaint is allowed against the opposite parties with costs of Rs.1,000/-. Opposite parties are directed to do as under :-<br /> ( i ) Pay Rs. 50,000/- to the compensation under section 14(1)(d) of the Act.<br /> ( ii ) Compliance within 30 days from the date of receipt of copy of this order.<br /> 17. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 16.5.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> 'bsg' <br />