Kerala

StateCommission

CC/10/35

Mohammed Nowfal - Complainant(s)

Versus

M/s Mercedes-Benz India Pvt Ltd - Opp.Party(s)

S.Reghu Kumar

29 Feb 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM

 

C.C. NO.35/2010

JUDGMENT DATED29/02/2016

PRESENT:

SMT. A. RADHA                                      :         MEMBER

SMT. SANTHAMMA THOMAS              :        MEMBER

COMPLAINANT:

            Mohammad Nowfal, S/o. Sri. Abdul Salam,

Pattathil, Ayathil P.O., Kollam, Kerala.

(By Adv:    S. Reghukumar)                    

                   Vs

OPPOSITE PARTIES:

1.  M/s. Mercedes-Benz India Pvt. Ltd.,

E-3, MIDC Chakan, Phase-III, Chakan Industrial Area,

Kuruli & Nighoje, TALKHED, Pune-410 501,

Maharashtra State.

2. M/s. Rajesree Motors Pvt. Ltd., 2/393 © NH-47,

Vyttila-Aroor Bye Pass, Near Kundanur Jn.,

Maradu P.O., Kochi-682 304.

(By Adv: P. Ramakrishnan & T.C. Krishna)  

JUDGMENT

SMT. A. RADHA  :  MEMBER

          This complaint filed under section 17 of the Consumer Protection Act by the complainant is to direct the opposite parties to take back the defective car sold to him and to replace with a brand new car or to refund the value of car with interest @ 15% amounting to Rs.45,85,541/- .  Further reliefs claimed are compensation of Rs.10 Lakhs and Rs.50,000/- towards cost of litigation.

2.  The complainant purchased the Mercedes Benz E Class passenger car bearing Registration No.KL2 AE 3003 manufactured by the 1^st opposite party for  ex-show room price of Rs.40,76,037/- from the 2^nd opposite party on 30/01/2010 and the car was delivered at Kollam on 12/03/2010.  The warranty of the vehicle was for 24 months without any mileage limitation.  The vehicle was purchased by the complainant for personal use and for his family members.  It is the allegation of the complainant that the vehicle was not performing normally and it was not of  standard quality.  The vehicle developed various snags even before the vehicle covered 15000 kms.  The major complaints pointed out by the complainant are fuel pump trouble, suspension problems, abnormal sound in the Engine, Rattling sound emanating from the body and abnormal vibration while changing speeds.  The specific allegation is that due to the injector malfunction and other reasons, break down happened and it is the reflection of poor quality of manufacture.  The defects occurred constantly and repeatedly.  The expert deputed by the opposite parties was unable even to diagnose the source of abnormal noise from the engine showed the seriousness of the defects.  The complainant was compelled to take the car to one expert to another for rectification of the complaints.  The opposite parties failed to rectify the defects and the denial to replace the defective car amounts to unfair trade practice.  The existence of defects still persist and keep on increasing day by day.  The complainant expended a huge sum of money for the purchase of the car and is unable to use the vehicle properly even during the warranty period.  All the normal maintenance and servicing were carried out by the authorized service centre as per schedule issued by 1^st opposite party.  This act of the opposite parties jointly and severally liable for deficiency in service and the complainant is entitled for the reliefs claimed for.  The complainant suffered mental agony due to the defects occurred in the vehicle and it is to be compensated. 

3. On receiving notice the 2^nd opposite party appeared and filed version contenting that the complainant is not a consumer as defined under Section 2(d) of the Consumer Protection Act.  The vehicle was purchased by and registered in the name of the Managing Partner, Tasty Nut Industry, Kollam.  The said vehicle is the asset of the establishment and the vehicle is used purely for business/commercial purposes.  Hence the complaint does not come under Section 2 (c) of Consumer Protection Act.  No deficiency in service or unfair trade practice can be attributed upon the opposite parties and the complaint is liable to be dismissed on that ground itself.  The purchase of the Mercedes Benz and the warranty period of        2 years are also admitted. The vehicle delivered after thorough check up and was having no defect at all.  Before filing the complaint the vehicle was brought 5 times to the service station of the 2^nd opposite party.                 On 17/04/2010 being the first free inspection the car was brought when covered 3258 kms.  It is on 19/06/2010 the vehicle was brought to the service station on a reported break down with the complaint of starting trouble.  It was found on inspection that the fuel injector was not working properly and was replaced free of cost and returned the vehicle on the same day itself.  By that time the vehicle covered 10820 kms and no other complaints raised at that time.  On 20/08/2010 the A-Type service and interior service was carried out as first paid service while the car covered 15000 kms.  After the service, vehicle was delivered back on 27/08/2010.  Subsequent services were on 30/10/2010 for replacing the outside mirror, on 6/11/2010 for replacing the break pads when the vehicle covered    22751 kms.  The technical specialist was deputed to check the abnormal noise from suspension and vibration from the car but the noise was very negligible.  Though the complainant was asked to bring the car to the service station of the opposite party, it was not responded by the complainant.  Even after filing the complaint, the opposite parties attended the loose contact in the wiring harness connector.  The injector was replaced immediately under warranty.  The opposite party attended the complaint about the noise from suspension, on 24/6/2011 the front suspension struts were replaced free of cost under warranty.  There is no manufacturing defect as alleged by complainant.  It is contented that the opposite parties extended effective and timely service to the complainant. 

 

 

There is no unfair trade practice or deficiency in service on the part of opposite parties.  The compensation claimed is too high and imaginary.  The complainant is not entitled for replacement of vehicle and other reliefs sought for in the complaint.

          4.  Upon the above pleadings and contentions the issues raised for consideration are:-

                    (i)  Whether there is manufacturing defects/persisting defects

in the car amounting to deficiency in service?

                   (ii)  Whether the complainant is entitled for any relief as

      prayed for?

 

                   (iii)  Relief and cost?

 

          5.  The evidence in this case consists of the oral testimony of PW₁, DW₁, DW₂ and Exhibits A₁ to A₁₃, B₁ to B₉ and C₁ marked on the side of the complainant and opposite parties respectively. 

 

 

Point No.1:

6.  The case of the complainant is that a brand new Mercedes Benz  E Class Car purchased on 30/01/2010 from 2^nd opposite party, which is manufactured by 1^st opposite party is having frequent break downs and it affected the user of the vehicle.  Though the vehicle had taken to the service station of 2^nd opposite party with major defects having fuel pump trouble, suspension problems, abnormal sound in the engine, rattling sound emanating from the body and abnormal vibration while changing speed could not be rectified and is still persisting.  It is alleged that the opposite parties sold a defective car and sought for the refund of the price of vehicle.  The multiple complaints were present before the vehicle crossed 3000 kms.  The defects persisting were already noted in the delivery note is clear from Exbt: A4.  Despite frequent reporting of complaints, the abnormal noise from Engine side was persisting from the beginning which was well within the knowledge is evidenced in Exbt: A5 and A6.  The vehicle had to be towed due to defects before covering 15000 kms.  The replacement of injectors were not sufficient for the proper performance of the vehicle. The vehicle was entrusted for repair works as per  pre-order form on 6/11/2012 and the remarks noted is ‘not satisfactory’ and the engine noise, steering noise still not changed and is still existing.  Exbt: A14 acknowledges the payment of  Rs.1,87,512/- in full for service availed by the complainant.                      The commission report indicates that there had malfunction of injectors in the early stage and the replacement of injectors at an early stage definitely denotes the manufacturing defect necessitating the replacement.  Due to the noise from suspension, the front suspension struts replaced, front road wheels were removed and installed where as the wheel alignment report was absent and reported that the replacement of struts was not properly justified in the absence of wheel alignment.  The failure of injectors repeated in 79358 kms shows the engine malfunctioning and resulting power balancing problem, vibrations, engine lag and power related problems.  The camber problem still exists.  The steering noise on one side is there while driven down the gradient and could not be sought out by the experts.  It is evident from the deposition of PW1 that the German Technician attended the car on 30/11/2011 and thereafter advised to take the vehicle to Ernakulam service centre to another technical expert clearly shows that the vehicle was having persisting defects which could not be rectified.  From Exhibit A14 dated 6/11/2012 the complainant spent Rs.1,87,512/- towards repairing charges and still the unpleasant and unsatisfactory remarks had to be recorded by the complainant.  The vehicle was subjected to timely service at the workshop of the opposite parties.  The defects occurring repeatedly is nothing but a pointer to the manufacturing defect.  The complainant after paying huge sum as cost of the vehicle was unable to use the car without break downs and had to suffer discomforts due to the defects.  Due to the break down on 19/6/2010 the vehicle had to be towed was admitted by DW1.  As per the service condition the service is to be carried out only after one year.  The abnormal noise was noticed by the technical expert at Trivandrum Service Centre is also coming out from the deposition of DW1.  The expert from Germany is an employee of the 1^st opposite party for the last 15 years in the technical field.  As per Exbt: B9 the expert confirmed the abnormal vibrations from engine suction fan at times and remarked that ‘the fan has an imbalance due to the mileage, at maximum speed as high cooling is required, slide vibrations can be detected, replacement required’.  The star Diagnosis equipment showed that control units in the car are functioning in good order, except the steering column module.  ‘No manufacturing defect’ pointed out by the expert.  The car has been used extensively within           2 years referring to the odometer reading.  As per the deposition of DW2, the injectors can get damaged due to bad quality of fuel. There had 9 visits to the service station as per the job card from June 2010 to March 2012 and even after replacement of injectors, the injector problem is repeating.  It is reported by the Commissioner that faulty injector cannot have proper engine mapping and can create the engine lag and vibrations.  When the power steering and strut replacement carried out to rectify the problems related to steering and suspension noise was without quoting valid reason for replacement of components.  Inspite of replacement of strut,  the camber  readings  were  out  of   alignment.  Steering  noise  on  one      side was noticed.  The replacement of the components at early stage indicates that there had defects.  The workshop order dated 28^th May 2012 states that 1^st cylinder injector is defective. After the first service on 17/4/2010, the vehicle was brought to the service centre on a reported break down.  On inspection the starting trouble was due to the non-working of the fuel injector and the fuel injector was replaced free of cost.  The vehicle has to carry out the service in  every 15000 kms or  one year.  The opposite parties admitted the defect in injector and the replacement of injector.  A slight noise from the engine was observed by opposite parties and contends that it is negligible.  The instruction of opposite party to send the vehicle for inspection and rectification itself shows there is same abnormality or defect in the vehicle.  Even after filing the complaint, the injector has replaced under warranty and replacement of front suspension struts denotes that the defects are persisting.

          7.  Though the defects cannot be  termed as manufacturing defects the complainant is at a loss as he had to take the car to the dealer for repairs.  The injectors are sensible to vibration and replacement of the injectors were done free of cost.  The noise reported is definitely due to improper functioning of injectors and the report of the Commissioner that injector failure is due to manufacturing defect is without any basis.  The extensive use of the car is the other reason pointed out by the opposite parties.  The struts replacement does not warrant wheel  alignment in Mercedes Benz Car and the wheel alignment is done only in cases of accidents involving damage to suspension system.  Overall, the customer had to suffer mental agony due to break down, abnormal sound and the replacement of injectors and struts.  There had no reported defects at the first free inspection on 17/4/2010 when the car covered 3258 kms, evidenced by Exbt: B1.  The vehicle was brought to service centre on a reported break down on 19/6/2010.  Thereafter the repeated complaints caused mental agony and problems.  It is an admitted fact that there had injector problems, sound emanating from engine which could not be sorted out even by the technical expert of the opposite party or at the service centre. The complainant was instructed to take the vehicle to Cochin for further inspection which shows that the defect could not sorted out or rectified.  Hence we find that there is persisting defect in the car and could not be rectified.  The complainant spent a good sum of money for the purchase of the vehicle and he could not use the vehicle without trouble or undisturbed.  Hence we are of the firm view that the opposite parties are to be held liable for the deficiency in service for not providing a good car without any defects nor the defect could be rectified properly to the satisfaction of the complainant.

          8.  Before going to the relief, we would like to point out that the strong objection raised by opposite parties is that the car was purchased by the partnership firm and from the assets of the firm and the use of vehicle is commercial in nature.  At this juncture, we are of the view that the commercial nature varies to the facts of the use.  In this case, the vehicle is exclusively used for the personal use of the complainant and the family and nothing in evidence brought contrary to it.  It is true that the complainant is the Managing Partner of a firm that does not mean the car is exclusively used for commercial purpose or making profit out of the use of the car.  Hence we are not inclined to accept the contention that the car is used for commercial purpose. Since the car is used for the personal use of the Managing Partner and family and is not used for any activity directly connected with the commercial purpose of earning profit. 

9.  Now whether the complainant is entitled for relief is to be answered in affirmative.  The car was purchased for a princely sum of Rs.40 Lakhs and the usage of the car is obstructed due to defects, breakdown and abnormal sound which could not be found out on inspection.  A person who purchases a car is expected to use it at its maximum comforts.  One of the objections raised by the opposite party is the use of car.  A luxurious car after purchase cannot be restricted to a prescribed kilometers and the vehicle is expected to be at the disposal of the customer with uninterrupted defects.  It is an undisputed fact that there are defects persisting even now. The complainant would not be satisfied with a car which requires repeated repairs and relief claimed is for replacement or refund of the purchase price of the car along with compensation for mental agony and cost of litigation.  While taking into consideration of the concern of the 2^nd opposite party to send the car to Cochin at any time suitable to the complainant for detailed examination the complainant was reluctant to the direction.  The car was tested by the expert technician of the opposite party and could not detect the alleged sound from the car.  The complainant is using the car and has covered more than One Lakh kilometers within a span of 2 years which itself shows manufacturing defect alleged by the complainant could be rectified or by replacement of the defective parts.  However, the car taken to the opposite party for rectifying the defects within a short time of the purchase.  The opposite party failed to prove that the defects were cured to the satisfaction of the complainant and car is defect-free.  In our considered view the grievance of the complainant is continuing and it is to be compensated as he had to suffer mental agony due to the break-down and inconsistent sound from engine.  A luxurious car is expected to have the highest standard of performance, safety and comforts.  The Mercedes-Benz is supporsed to be the finest car and creating troubles to the complainant amounts to deficiency in service.  Considering the facts and circumstances of the case, we are of the view that the complainant is entitled for compensation.  To what extend the compensation is to be calculated comes to the performance of the vehicle after replacement.  The replacement of injector and struts and thereafter the extensive use of the car for more than 1 Lakh kilometers, we are not inclined to allow the replacement of the car or refund of the purchase money.  The opposite parties are directed to rectify the defects persisting and also direct the opposite parties jointly and severally to pay compensation for mental agony and hardship suffered by the complainant.

          10.  As discussed above, the complaint is partly allowed.  The opposite parties are jointly and severally directed to pay an amount of Rs.7,00,000/- (Rupees Seven Lakhs Only) towards compensation and Rs.25,000/- as cost of proceedings, failing which the complainant is entitled to recover the amount with 9% interest from the date of this complaint.

          The order is to comply within 30 days on receipt of the order.

 

 

A. RADHA                  :            MEMBER

 

 

 SANTHAMMA THOMAS              :        MEMBER

 

Sa.

 

APPENDIX

Witness for the Complainant:-

          PW1 – Mohammed Noufal.

Witness for the Opposite Parties:-

          DW1 – P.B. Harish

          DW2 – Prakash.U

Exhibits for the Complainant:-

            A1 – 30/1/2010 – Copy of invoice issued by the 1^st opposite party.

          A2 – 20/3/2010 – True copy of Registration Certificate.

          A3 -                     - True copy of warranty card.

          A4 – 25/9/2010 – Copy of reply sent by the 2^nd opposite party.

          A5 – 29/9/2010 – Copy of reply sent by the 2^nd opposite party.

          A6 – 30/9/2010 – Copy of letter sent by the complainant to 2^nd

 opposite party.

          A7 – 4/10/2010 – Copy of reply sent by the 1^st opposite party to

                                       the complainant.

          A8 – 7/10/2010 – Copy of the letter sent by the complainant to

 2^nd opposite party.

          A9 – 7/10/2010 – Copy of reply sent by the 1^st opposite party to

 the complainant.

          A10 – 14/10/10 – Copy of reply sent by the 2^nd opposite party

 to the complainant.

            A11 – Copy of legal notice sent by the complainant to opposite

                   parties.

          A12 – Acknowledgment Card with the seal and signature of the

1^st opposite party.

          A13 – Acknowledgement card with seal and signature of the 1^st

opposite party.

          A14 – 6/11/2012 – Copy of the Pre-order Forum.

Exhibits for the opposite parties:-

            B1 – 17/4/2010 –  Workshop order.

          B2 – 19/6/2010 – Workshop order.

          B3 – 27/8/2010 – Workshop order.

          B4 – 31/10/2010 – Workshop order.

          B5 – 6/11/2010 – Workshop order.

          B6 – Copy of warranty terms & conditions.

          B7 – 14/10/2010 – Copy of E-mail letter sent by the Mercedez

   Benz India Pvt. Ltd. to the complainant.

          B8 – 7/2/2011 – Reply notice sent by opposite party.

 

          C1 – 14/11/2012 – Commission Report.

 

A. RADHA                  :            MEMBER

 

 

 SANTHAMMA THOMAS              :        MEMBER

 

 

 

 

 

 

KERALA STATE CONSUMER                                                                                       DISPUTES REDRESSAL

COMMISSION,                           

THIRUVANANTHAPURAM.

 

 

 

 

C.C. NO.35/2010

JUDGMENT DATED 29/02/2016

 

 

 

 

 

Sa.