Haryana

Yamunanagar

CC/916/2011

Aashirwad Sharma S/o P.D.Sharma - Complainant(s)

Versus

M/s Metro Motors - Opp.Party(s)

Subhash Chand

08 Dec 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR.

 

                                                                                          Complaint No. 916 of 2011

                                                                                          Date of institution: 29.08.2011  

                                                                                          Date of decision: 08.12.2016.

 

Aashirwad Sharma aged about 33 years, son of Sh. P.D Sharma, resident of House No.959/D-2/1239, Model Colony, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.

                          …Complainant.

                                                      Versus

1. M/s Metro Motors, Tejli Gate, near LIC Office, Jagadhri, through its Partner/Prop./Manager.
2. M/s Metro Motors, 106, Railway Road, Ambala Cantt. through its Partner/Prop./Manager.
3. TATA Motors Ltd., Global Administration Services Pvt. Ltd. , Vatika Triangle, 5^th Floor, Sushant Lok-I, Block A, M.G Road, Gurgaon, through its Manager/Managing Director.

                                                                                                                                   ...Respondents

 

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                          SH. S.C.SHARMA………………………….MEMBER.

 

Present:           Shri Subhash Chand, Advocate for complainant.

                         Shri S.R. Bansal, Advocate for OPs No.1 to 3.

 

ORDER

 

1.                     The present complaint has been filed under section 12 of the Consumer Protection Act. 1986, praying therein that respondents (hereinafter referred as OPs) be directed to pay Rs.1,12,265/- the cost of parts of car TATA Indigo and also to pay compensation as well as litigation expenses.

2.                     Brief facts of the complaint, as alleged by the complainant, are that the complainant purchased one car TATA Indigo Manza bearing Registration No.HR02-W-0942  from the OP No.1 whose registered office is OP No.2 and manufactured by OP No.3 in the month of March/ April 2010. At the time of purchasing the car in question, one warranty book was also provided and as per warranty clause, under the head 8 and sub clause Engine  the following parts are covered: -

“ Cylinder head, head gasket, oil pump and drive, crankshaft, flywheel and ring gear, timing gear, belt and chains, camshaft, cam follower, valves (excluding burnt and pitted valves), valve gear, pistons, connecting rod, gudgeonpin, distributor drive, inlet, and exhaust manifolds, bore/liner, turbo, intercooler units, where factory fitted, variable geometry, Turbocharger, EGR cooler, Cambox, Auto-tensioner.”

            The loss which has occurred to the complainant was covered under the said head and this claim was lodged with the OPs. The said claim was repudiated by the OPs vide its letter dated 25.03.2011, in which it has been mentioned that the claim lodged by the complainant is rejected, but no plausible reason has been shown for repudiation of claim by the OPs. The estimate of Rs.1,12,265/- was given to the OPs and complainant made a request number of times to the  OPs to accede the genuine request of the complainant but all in vain and putt off the matter on one pretext or the other. Hence this complaint.  

3.                     Upon notice, OPs appeared and filed its written statement separately. OPs No.1 & 2 filed its written statement by taking some preliminary objections such as complaint is not maintainable; there is no consumer dispute between the parties; complainant has not come to this Forum with clean hands and the vehicle was properly attended with the consent and knowledge of the complainant on payment basis and thereafter took the delivery to his entire satisfaction, but this fact has not been disclosed by the complainant in his complaint. The vehicle was out of warranty, as confirmed vide letter dated 25.03.2011 which is admitted fact as per Annexure C3. Hence, the complaint of the complainant is liable to be dismissed and on merit it has been admitted that OP No.3 is manufacturer of the car in question and the OP No.1 is only service provider of extended warranty. Since the vehicle was purchased from OP No.2 and not from the OP No.1. The claim of the complainant was rejected due to damage of sump leading to reduce the supply of engine oil parts which was due to negligence and improper maintenance of the parts by the complainant and this fact was told to the complainant and after that complainant had given consent to carry out the job on payment basis and the same was got done and thereafter, he took the delivery  from the OPs with entire satisfaction, although the job was out of warranty and thereafter, no complaint was ever reported and the last job was also got done on 20^th August, 2011 after covering the 69480 Kilometers and  controverted the stand taken in the complaint and reiterated the stand taken in the preliminary objections. Hence, there is no deficiency in service or unfair trade practice on the part of the OPs and lastly prayed for dismissal of the complaint.

4.                     OP No.3 appeared through the same advocate and filed its written statement by taking some preliminary objections such as complaint is not maintainable; as the OP No.3 is not manufacturer of the car and is not necessary party; the complaint of the complainant is also not maintainable as the vehicle in question was within the warranty period and the original warranty expires only in the year 2012 given by Tata Motors Ltd. Hence, the name of OP No.3 be deleted from the array of the OPs and on merit it is admitted to the extent that the OP No.3 is providing extended warranty that too starts after expiry of the manufacturer warranty which to start from 29.03.2012 and denied all the remaining facts of the complaint and lastly prayed for dismissal of complaint against OP No.3.

5.                     In support of his case, learned counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and documents such as Photo copy of Registration Certificate as Annexure C-1, Photo copy of invoice of parts as Annexure C-2, Photo copy of letter dated 25.03.2011 as Annexure C-3, Photo copy of proposal form/ policy schedule as Annexure C-4, Photo copy of extended warranty as Annexure C-5 and closed the evidence on behalf of complainant.

6.                     On the other hand, learned counsel for the OPs tendered into evidence, affidavit of Shri Jitender Yadav as Annexure R1/A, coloured photographs as Annexure R1/1 to R1/3 and Authorization Request Form as Annexure R1/4 and closed the evidence on behalf of OPs.

7.                     We have heard the counsels of both the parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely. Counsel for the complainant reiterated the contents mentioned in the complaint and prayed for its acceptance whereas learned counsel for the OPs reiterated the averments made in the reply and prayed for dismissal of complaint.

8.                     It is not disputed that the complainant purchased a car TATA Manza QUADR AURA from the OP No.2 bearing registration No. HR-02W-0942 on 30.03.2010 and the car in question was under warranty as the OP No.3 manufacturer has admitted this fact in para No.3 of the Preliminary objections of the written statement wherein it has been recorded “ that the vehicle in question is within the warranty period and the original warranty expires only in the year 2012 given by the TATA motors Limited”. It is also not disputed that complainant got repaired his car from OPNo.1 and an estimate to the tune of Rs. 1,12,265/- was given to the complainant on 25.03.2011 by Op No.1, however, an amount of Rs. 1,06,966/- were spent in actual on the car in question which is duly evident from the photo copy of bill issued by OP No.1 (Annexure C-2). The only version of the Ops Company that the claim of the complainant has been rightly repudiated vide letter dated 25.03.2011 (Annexure C-3) on the ground that on investigation it was found that engine sump was damaged due to the external hitting. Due to damage sump, turbo charger and engine were found defective. This was explained to the complainant and it was clearly told to him that job will be done on the payment basis and nothing is covered in the warranty as per TATA motor warranty policy.

9.                     Whereas on the other hand, learned counsel for the complainant argued at length that genuine claim of the complainant has been wrongly repudiated by the OPs and an amount of Rs. 1,06,966/- vide bill dated 19.05.2011 (Annexure C-2) has been wrongly and illegally charged from the complainant. Learned counsel for the complainant draw our attentions towards the two photo copies of the terms and conditions of the extended warranty (Annexure C-5) and argued that as per warranty clause under the Head 8 and sub clause engine, the following parts were covered:

                        “ Cylinder head, head gasket, oil pump and drive, crankshaft, flywheel and ring gear, timing gear, belt and chains, camshaft, cam follower, valves (excluding burnt and pitted valves), valve gear, pistons, connecting rod, gudgeonpin, distributor drive, inlet, and exhaust  manifolds, bore/liner, turbo, intercooler units, where factory fitted, variable geometry, Turbocharger, EGR cooler, Cambox, Auto-tensioner.”

            Learned counsel for the complainant further argued that as the complainant purchase the vehicle on 30.03.2010 and the turbo charger as well as engine of the car in question become defective within a period of 1 year and during the currency of warranty as well as extended warranty, so, the complainant is entitled to get refund the amount charged by the OP No.1 on account of repair in question from the complainant.

10.                   After hearing both the parties, we are of the considered view that an amount of Rs. 1,06,966/- was wrongly and illegally charged from the complainant by the OP No.1 as from the perusal of warranty clause (Annexure C-5), it is duly evident that the turbo and other parts of the engine were duly covered under the extended warranty. Furthermore, the OP No.1 has himself admitted in letter dated 25.03.2011 (Annexure C-3) that complainant approached the OP No.1 on 19.03.2011 vide complaint serial No. SR-MetMot/JD-1011-006307 for late start in problem and white smoking in the exhaust system and on investigation it was found that engine sump was damaged due to external hitting due to which the engine sump was damaged. When the car of the complainant was under the guarantee or warranty as well as extended warranty and such type of damages were occurred within a period of 11-12 months from its purchase, so, it cannot be said that the car in question was not having any manufacturing defect. Further, the version of the OPs that complainant has not maintained the vehicle in question properly is also not tenable as it is not the case of the Ops that the complainant has not obtained the services of the vehicle in question in time. Even, the OP No.1 has not placed on file any previous job card on which date the complainant got serviced of his car. Further, the OPs also did not bother to file any terms and conditions of the warranty as well as extended warranty according to which the claim of the complainant was rejected and an amount of Rs. 1,06,966/- was charged. Merely filing the photographs Annexure R-1 to R-3 and Authorization request Annexure R-4 does not prove that damaged parts were not covered under the warranty or extended warranty of the car in question. Now, a days companies are playing tactics to avoid its liabilities after sale of the vehicles. In the absence of any cogent evidence that car of the complainant damaged due to external hitting and without any report of engineer of the OPs, we are of the considered view that the Op No.1 has wrongly and illegally charged an amount of Rs 1,06,966/- from the complainant which constitute the deficiency in service and unfair trade practice on their part.

11.                   Resultantly, we partly allow the complaint of complainant and direct the OP No.1 to refund an amount of Rs. 1,06,966/- alongwith interest at the rate of 6% per annum from the date of filing of complaint till its realization to the complainant within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law.  However, OP No.1 is at liberty to charge the aforesaid amount from the OPs No.2 & 3, if he is entitled to get the same.  Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court: 08.12.2016.

 

                 

(S.C.SHARMA)                                          (ASHOK KUMAR GARG)

       MEMBER                                                   PRESIDENT

                                                                                                 DCDRF Yamuna Nagar