Haryana

Yamunanagar

CC/506/2010

Om Parkash Kamboj - Complainant(s)

Versus

M/s Pandit Automobiles Pvt.Ltd. - Opp.Party(s)

D.S.Kamboj

10 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                                           Complaint  No. 506 of 2010.

                                                                                                           Date of institution: 25.05.2010

                                                                                                           Date of decision:  10.05.2016

Om Parkash Kamboj aged about 52 years son of Sh. Ram Parshad, resident of House No. 207, Sector-17, HUDA, jagadhri, District Yamuna Nagar.

                                                                                                                                   …Complainant.

                                                Versus

1. M/s Pandit Automobiles Pvt. Ltd. Gobindpuri Byepass Road, Jagadhri, through authorized signatory.
2. Maruti Suzuki India Limited, 1, Nelson Mandela Road, Vasant Kunj, New Delhi-110070 through Mr. Partho Banerjee General Manager, marketing Strategy and Development.

                                                                                                                                    …Respondents.

Before:               SH. ASHOK KUMAR GARG, PRESIDENT

                          SH. S.C.SHARMA, MEMBER

 

Present: Sh. D.S.Kamboj, Advocate, counsel for complainant.   

              Sh. Rajiv Chawla, Advocate, counsel for respondent No.1.

              Sh. S.R.Bansal, Advocate, counsel for respondent No.2.   

 

ORDER

1.                     Complainant Om Parkash has filed the present complaint under section 12 of the Consumer Protection Act 1986.

2.                     Brief facts of the present case, as alleged by the complainant, are that complainant purchased a Maruti Car Make Alto Lxi on 15.12.2009 from the agency of respondent No.1 (hereinafter referred as Op No.1). As per the terms and conditions of the warranty policy, the terms of warranty shall be 24 months or 40000 KM (whichever occurs first) from the date of delivery. On 14.01.2010, the engine of the car in question got seized and complainant, therefore, intimated the Op No.1 in this regard. The complainant requested the Ops for replacement of the engine but instead of replacing the engine its repair were carried out and the complainant was told that it will now run properly. Inspite of repairs carried out by Op No.1, the engine of the car is not working properly as it stopps anywhere in motion and there is also abnormal voice from the engine, which shows that engine has not been working normally. As such, there seems to be some manufacturing defect in the engine and the complainant requested to the Ops to replace the same several times but all in vain. On 18.01.2010 and 21.01.2010 complainant gave fax message to the OP No.2 bringing to his knowledge the whole facts but no reply was received.  A legal notice was also issued upon Ops on 17.03.2010 but no reply of the same was given by the Ops. Lastly, prayed for directing the Ops to replace the engine of the car of the complainant against new one immediately and further to pay Rs. 50,000/- as compensation and Rs. 11000/- as litigation expenses.

3.                     Upon notice, OPs appeared and filed their written statement separately. OP No.1 filed its written statement by taking some preliminary objections such as complaint is not maintainable, no locus standi, complainant has concealed the true and material facts from this Forum, complainant is stopped by his own act and conduct, complaint has been filed just to harass the OP No.1 and has got no cause of action and on merit, it has been stated that complainant has concocted a false story, in fact on 09.01.2010, the first service was done satisfactory and thereafter complainant hit the car on the road and oil was leak from engine and due to this reason the car in question was seized and thereafter, because due to the warranty condition, the vehicle was properly repaired free of costs and new main begun of crank was replaced free of costs and at that time consumer was fully satisfied from the service of Op No.1 because it was totally negligence and deficiency on the part of the consumer as the car hit on road and due to this reason, the engine was seized. Thereafter, the vehicle in question was also duly serviced by the complainant at Gopal Motors and after checking the record of the vehicle, there was no complaint regarding the noise in engine and it was found O.K. It has been further mentioned that complainant is using vehicle frequently and there is no manufacturing defect in the vehicle and thereafter complainant never visited the service centre of Op No.1 and lastly prayed for dismissal of complaint as there is no deficiency in service on the part of OP No.1.

4.                     OP No.2 filed its written statement by taking some preliminary objections such as complaint is false and frivolous, complaint is bad for mis joinder and non-joinder of necessary parties, as the complainant with malafide intention did not implead M/s Gopal Automobiles Service Station, Yamuna Nagar as a necessary party. As evident from the record, the complainant brought the vehicle for obtaining second and third free inspection services and did not report alleged problem and obtained normal routine maintenance services which substantiate perfect O.K. and roadworthy condition of vehicle in question. On merit, it has been submitted that OP No.2 company is a reputed car manufacturer of India in the name of Maruti Suzuki and manufactured cars in India for more than 25 years and the relationship between Op No.1 & 2 is that of principal to principal basis only as per the dealership agreement executed between the opposite parties, Thus, it is sufficient enough to delete the name of OP No.2 from the array of the parties and complaint is liable to be dismissed in limine. It has been further stated that as per record first free inspection service was done at workshop of Op No.1 on 09.01.2010 at 1199 KMs and the complainant neither pointed out alleged defect nor Op No.1 observed any abnormality in the vehicle. Further, the complainant towed his vehicle at workshop of OP No.1 on 14.01.2013 at 1369 KM vide job card bearing No. JC090093800 upon which the vehicle was thoroughly inspected by the expert service team of the Op No.1. It was observed that oil leaked due to drain plug washer found broken due to negligent driving habits of complainant. The complainant drove the vehicle without ensuring proper levels of engine oil and even neglected the warning malfunction indicator light glowing in the cluster instrumental panel indicating over heating of engine. The complainant ignored all the warnings and continued to drive the vehicle and the act of the complainant substantiates negligent and careless driving habits. Resultantly, upon violation of the terms and conditions by the complainant, the warranty obligations of this OP to the vehicle in question stand concluded. It has been further mentioned that complainant obtained 2^nd and 3^rd free service on 10.04.2010 at 4955 KMs and on 14.08.2010 at 10,000 Kms. respectively from Gopal Automobiles Service Station, Yamuna Nagar and did not point out alleged defect. Hence, the complainant has not approached the Hon’ble Forum with clean hands. Lastly, prayed for dismissal of complaint against Op No. 2.

5.                         To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A, copy of FAX dated 18.01.2010 as Annexure C-1, Photo copy of Fax dated 21.01.2010 as Annexure C-2 & C-3, Photo copy of job card dated 09.01.2010 as Annexure C-4, Photo copy of job card dated 14.01.2010 as Annexure C-5, Photo copy of feedback card as Annexure C-6, Photo copy of registered AD legal notice as Annexure C-7, Photo copy of postal receipts as Annexure C-8 & C-9, Photo copies of acknowledgement as Annexure C10 & C-11  and closed the evidence on behalf of complainant.

6.                     On the other hand, counsel for the OP No.1 tendered into evidence affidavit of Jitender Sharma, Director M/s Pandit Automobile Pvt. Ltd. As Annexure RW/A and closed the evidence on behalf of Op No.1.

7.                     Counsel for Op No.2 tendered into evidence affidavit of Gunjan Malik as Annexure RW2/A documents such as Pre Delivery Inspection sheet as Annexure RW2/1, Photo copy of delivery check list as Annexure R2/2, Photo copy of terms and conditions of warranty card as Annexure R2/3, Photo copy of job card dated 09.01.2010 as Annexure R2/4, Photo copy of job card dated 14.01.2010 as Annexure R2/5, Photo copy of job card dated 10.04.2010 as Annexure R2/6, Photo copy of judgment of National Commission as Annexure R2/7 and closed the evidence on behalf of OP No.2.

8.                     We have heard the learned counsel for the parties and have gone through the pleadings as well as documents place on file very minutely and carefully.

9.                     The only version of the complainant is that on 14.01.2010, the engine of the car in question got seized and the complainant requested the OP No.1 for replacement of the engine but the OP No.1 instead of replacing the engine, carried out its repair, due to which, the engine of the car is not working properly, it stopps anywhere while in motion. There is also abnormal voice in the engine. As such there seems to be some manufacturing defect in the engine and the Ops did not pay any heed despite so many requests by way of fax as well as legal notice and referred the case law titled as Ashok Leyland Ltd. Versus Gopal Sharma & Others, II(2013) CPJ page 394 (MNC) wherein it has been held that Consumer Protection Act, 1986-Sections 2(1)(d) , 2(1)(f)(g), 21(b) Motor Vehicle- Engine failure- Manufacturing defect- Warranty period- Deficiency in service- State Commission allowed appeal- Hence revision- Petitioners are service providers and complainant is consumer- Requirement of Section 13(3) of Act, 1986 was never complied with- Engine is not working from day one- Complainant has suffered harassment and mental agony- Damages for pecuniary loss rightly awarded- Impugned order upheld.

10.                   On the other hand, counsel for the OPs hotly argued at length that there is no manufacturing defect in the car in question. As the complainant has not brought into the notice any alleged defect on 09.01.2010 at the time of first service, which was done satisfactorily. It has been further mentioned that complainant hit the car on the road and engine oil was leaked from the engine and due to this reason the vehicle was seized. However, due to the warranty condition, the vehicle was properly repaired free of costs and new main begun of crank was replaced free of costs and at that time consumer was fully satisfied from the service of OP No.1 because it was totally negligence and deficiency on the part of customer himself. Even after that complainant serviced his vehicle for 2^nd and 3^rd free service from M/s Gopal Motors, Yamuna Nagar and no complaint of any kind regarding noise in engine was brought into the notice. Lastly, prayed for dismissal of complaint against Op No.1. Learned counsel for the OPs referred the case law titled as Maruti Udyog Limited Versus Hasmukh Lakshmichand & Another, 2009(4) CLT page 139 National Commission, wherein it has been held that Consumer Protection Act, 1986, Sections 2(1)(f), 13(1)( c)- Car- Manufacturing defect- Expert opinion- Attempt made by the manufacturer to get the opinion of Expert or an independent agency thwarted by the respondent/complainant by not handing over the car for taking it to ARAI for inspection- Vehicle still in running condition and covered 1,20,000 Kms. In 11 years- Had there been manufacturing defect in the car in question, the car could not have run for so long- complainant seems only interested in getting the vehicle replaced but such request/wish cannot be granted- Held that there is no manufacturing defect in the car- For a below have erred in holding to the contrary and directing petitioner/ manufacturer to replace the vehicle with a new vehicle after a lapse of so many years. 11.                       After hearing both the parties at length, we are of the considered view that there is no deficiency or unfair trade practice on the part of OPs as the complainant has totally failed to prove his case by filing cogent evidence that the engine seized due to carelessness and negligent on the part of OPs. The complainant has simply mentioned in para No.3 of his complaint that engine of the car in question got seized but not a single iota of word has been disclosed in his complaint that due to what reason the engine was seized, even no allegation has been made in the complaint against Op No.1 or Op No.2. It is pertinent to mention here that complainant purchased new car just one month before i.e. on 15.12.2009 and got it first free service on 09.01.2010 from OP No.1 and on first free service there was no requirement to replace the engine oil. So, there is no presumption that there was any fault on the part of official of OP No.1 as the complainant drove the car in question smoothly for one month after its purchase on 15.12.2009 till the date of seizing of engine. Further, the complainant has not filed any expert opinion or mechanic report that there was no accidental damage to drain plug washer from which engine oil leaked. Even the complainant has not controverted the versions of the OPs that there was no negligence or carelessness on the part of complainant himself as alleged by the Ops in their written statement. We have perused the job sheet dated 14.01.2010 Annexure C-5/R2/5 from which it is evident that no amount has been charged on any account from the complainant and new main begun of crank was replaced free of costs. Further, we have also perused the job sheet issued by M/s Gopal Motors, Yamuna Nagar Annexure R-2/6 from which it is evident that the car in question was got serviced by the complainant and no complaint in respect of noise in engine or any manufacturing defect was lodged by the complainant with that service centre.

12.                   In the circumstances noted above, we are of the considered view that as the complainant has totally failed to prove that the engine of the car in question was seized due to the negligence on the part of OP No.1 and the car in question was having any manufacturing defect.

13.                   Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. 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: 10.05.2016.

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER