Haryana

Ambala

CC/163/2014

RINKU - Complainant(s)

Versus

M/s Oberoi Automobiles - Opp.Party(s)

Yogesh Sehgal

17 Sep 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

Complaint Case No. : 163 of 2014

Date of Institution      :02.07.2014

Date of Decision       : 17.09.2015

Rinku wife of Naresh Kumar, resident of village and Post Office Pilakhani, Tehsil Ambala, District Ambala.

                                                                                                                                                              ……Complainant.

                                                                                             Versus

1. M/s Oberoi Automobiles (P) Ltd., Near Jail Bridge, Ram Nagar, Baldev Nagar, Chandigarh Road, Ambala City (Dealer of Chevrolet Cars) through its Authorised Signatory/Proprietor.
2. Customer Assistance Center, Chevrolet Sales India, Chevrolet Block-B, Chandrapura India Pvt. Ltd. First Floor, Plot No.15, Sector 32, Gurgaon, Haryana through its Branch Office (through its Manager).

                                                                                                                                           ……Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act

CORAM:    SH.A.K. SARDANA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.         

Present:       Sh. Yogesh Sehgal, Adv. for complainant.

                   Sh. Keshav Sharma, Adv. for OP No.1.

                   Sh. Harjot Singh, Adv. for OP No.2.

ORDER.

                    Brief facts of the present complaint are that the complainant purchased one Chevrolet Beat TCDi LS BS4 Car (Diesel) bearing Chasis No.009002 and Engine No.120530027 from OP No.1 on 20.12.2012 by making payment of Rs.4,72,537/- vide HPA from UCO Bank, Ambala  which was registered vide registration No.HR29B-0098 on 04.02.2013. Complainant alleged that the car was having problems of Abnormal noise in the engine & engine stops automatically.   As such, on 22.11.2013, complainant approached the OP No.1 where the officials present on duty advised that  if the problems are solved by them officially with service card, then the charges will be Rs.60,000/- but if you want to save your money then the problem will be solved by us without informing the company and you will have to pay Rs.35,000/- and thus the complainant agreed to pay an amount of Rs.35,000/-. After sometime,  the complainant again faced the same problem of engine noise and approached the Op No.1 but the OP No.1 told the complainant that you have got serviced your engine outside from the company during the warranty period, so they cannot rectify the engine fault without making  a full charge Rs.50,000/- in cash, then the complainant send an e-mail to the Op No.2 as a complaint. It has been further alleged by the complainant that the Ops have sold the defective engine car to the complainant with the false assurance that the car sold by them is of best quality in India and due to the defective car sold   by the Ops, the complainant has suffered a huge financial loss and thus there is a clear deficiency in service as well as unfair trade practice on the part of opposite parties. In the end, the complainant has prayed that the Ops be directed to replace the defective engine of the car with new one and to pay compensation as mentioned in the prayer para of the complaint.

2.                Upon notice, Ops appeared through their respective counsels. OP No.1 submitted written statement raising preliminary objections qua non-maintainability of the complaint  because the vehicle  was received in the workshop for low pick up and front side noise, to which the same was checked on 27.11.2013 and accordingly the complaint was observed and found that its oil pan was got damaged with some outside element  and oil level was low and the warranty of the car was denied due to this reason and estimate was given  for  engine overhauling but the same was not accepted by complainant due to his carelessness  & negligence and the customer had taken back his car, hence, there is no fault of the OP No.1 and this fact was not disclosed by the complainant in his complaint which is concealment of fact and abusing the  process of law. Thereafter the complainant has not visited to the workshop of the answering respondent and all these impact has caused engine damaged due to under body heat. On merits, it was urged by the OP that there is no manufacturing defect in the engine or any part of the car since the oil pan was damaged causing loss to the engine, requires overhauling but the same was refused by the husband of the complainant and accordingly no payment was received by the answering OP.  In the end, prayer for dismissal of the complaint has been made.

                   Op No.2 filed written statement raising preliminary objections qua non-maintainability of complaint and mis-joinder & non-joinder of necessary parties. On merits, it has been submitted that the answering OP works on principal to principal basis and it is denied that the complainant ever approached the answering OP with these problems and the complaint is after thought. In fact the complainant got carried out the repair work from some unauthorized workshop, as such, complainant  has violated the terms & conditions of warranty agreement. Besides it, for any act of Op No.1, only OP No.1 can be held responsible and it can be answered  in a better way by Op No.1. OP No.2 further urged that the vehicle is not a defected one, therefore, there is no requirement for replacement of the same. In the end, prayer for dismissal of the complaint with costs has been made.

3.                To prove his version, complainant tendered his affidavit as Annexure CX  alongwith documents as Annexures C-1  to C-3 and closed his evidence whereas on the other side,  counsel for OP No.1 tendered affidavit of one Sh. G.K. Sharma, Manager of OP No.1 firm as  Annexure RX alongwith documents as Annexures  R-1 & R-2.  Counsel for OP No.2 tendered affidavit of one Sh.Anand Kumar of OP company as Annexure RA alongwith documents as Annexures R2/1 to R2/3 and closed the evidence on behalf of OP No.2.

4.                At the very outset, it is an admitted fact on record  that during the proceedings of the case, to resolve the dispute amicably between the parties, both the parties were directed to appear before the Forum in person alongwith disputed vehicle whereupon the complainant brought the vehicle in towed condition and tendered  statement on oath that the car in dispute is defective since November 2013 and is not in a condition to ply on road whereas Sh. Amar Jyoti, General Manager of  OP No.1 appeared before the Forum and tendered  a statement that defect of the car in question can be ascertained  in the workshop and they will file inspection report of the vehicle before the Forum.  Accordingly, the defective car was received by G.M.  of Op No.1 in towed condition and was carried to the workshop  of OP No.1 on 06.07.2015 vide document Annexure R-2 and thereafter Inspection report dated 11.07.2015 (Annexure R-1) was submitted  before the Forum on 15.07.2015 wherein it has been reported that “the engine needs to be overhauled which requires an expenditure of approximately Rs.47,000/-  and replacement of Intercooler Assy. for Rs.13630/- for which  customer has to pay full amount as the vehicle is out of warranty.” Further the aforesaid expenditure of Rs.47,000/- has been  categorized by OP No.1 in Rs.38,000/- towards spare parts & Rs.9000/- towards labour charges vide statement recorded separately on 11.09.2015. So, the main dispute in delay in repair of the vehicle in question is “who will bear the expenses of repair?”.

5.                After hearing both the parties and going through the record placed on file, it is not in dispute that the vehicle in question was sold by OP No.1 to the complainant and the same is within the warranty period because neither the three years have elapsed from the date of delivery of vehicle nor it had run more than 1,00,000 Kms. as per standard limited warranty coverage placed on file by OP No.2 as Annexure R-2/1.  The main contention of OP No.1 in not rectifying the defects of the vehicle in question as per warranty clause is that “The vehicle was received in the workshop for low pick up and front side noise on 27.11.2013 which was checked and found that its oil pan got damaged with some outside element & oil level was  low and thus the warranty of the car was denied and an estimate for overhauling the engine was given to the husband of complainant which was not accepted by the customer & had taken back his car” But the OP No.1 has failed to produce any affidavit of Mechanic or Engineer of the company to prove their contention that ‘by which outside element the alleged oil pan was got damaged’ as it is a settled proposition that when it is made out that the vehicle in question is defective, it becomes the paramount duty  of the Opposite parties to attend to this aspect and ensure that the defects are removed. Further on perusal of vehicle History Card (Annexure R-2/2) placed on file by OP No.2, it reveals that the vehicle in question was serviced five times during the period December 2012 to November 2013, so it cannot be said that the defects occurred in the vehicle (car) due to outside element. Further the version put by OP No.2 that he is not liable for any deficiency in service of OP No.1 since the relationship between him and OP No.1 is principal to principal basis as per agreement (Annexure R-2/3) placed on file by Op No.2, is having  no effect in the case of complainant since the alleged agreement is between the OP No.1 & OP No.2 to which the complainant is not a party and thus not binding upon him. So, in these circumstances, we have no hesitation in holding that the Ops are deficient in providing proper services to the complainant and are bound to rectify the defects in the car in question as per warranty provided at the time of sale of the vehicle in question to the complainant.

                   In view of the facts discussed above, we allow the present complaint and direct the Ops to comply with the following directions within 30 days from the communication of this order:-

(i)      To rectify the defects/repair the vehicle in question of the complainant and handover to him/her in perfectly working condition to his/her entire satisfaction.

(ii)     To pay a sum of Rs.5000/- on account of costs of litigation etc.     

              Further the award/directions issued above must be complied with by the Ops within the stipulated period otherwise the Ops shall further pay the penalty/punitive damages @ Rs.500/- per day to the complainant for the period of default. 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:17/09/2015                                                                       Sd/-

                                                                                                          (A.K. Sardana)

                                                                                                            President.

                                                                                                                 Sd/-

                                                                                                   (Pushpender Kumar)

                                                                                                             Member.