Assam

Dibrugarh

CC/8/2016

MD. AKRAM AHMED - Complainant(s)

Versus

M/S PASUPATI TRADEERS - Opp.Party(s)

SRI RAMEN KONCH

26 Jun 2023

ORDER

Date of Argument – 30.07.2022 & 05.09.2022

Date of Judgment –  26.06.2023

            This complaint was filed by the complainant under section 12 of Consumer Protection Act, 1986 claiming to direct the opposite parties to replace the vehicle of the complainant with a brand new vehicle of same nature and to pay ₹ 1,500/- per diem from the date of taking delivery of the vehicle till the date of return the same to the complainant and to pay a compensation of ₹ 2,00,000/- (Rupees two lacs) only for harassment, mental agony etc. and to pay the cost of the case.

Judgement

            The case of the complaint is that the complainant is a permanent resident within the jurisdiction of this Commission he was the Branch incharge of the Assames Daily Newspaper ‘Dainik Janasadharan’ and the News Channel ‘Assam Talk’ having office at Bairagimath, Dibrugarh. The complainant booked an ENJOY Diesel vehicle of Chevrolet India by making a payment of ₹ 20,000/- (Rupees twenty thousand)only vide SBI cheque No.408860 dated 22.08.2013. The complainant was introduced by the officials of O.P. No.1 M/s Pasupaty Traders, authorized dealer/sales and servicing centre of Chevrolet Sales India Pvt. Ltd. to the Manager of UBI, Dibrugarh Branch who after due persuasion granted loan to purchase the vehicle by fixing regular EMI at ₹ 10,572/- payable to the bank and accordingly due payment was made by the bank. Thereafter the vehicle was handed over to the complainant on 27.09.2013 after 27 days from the date scheduled for delivery. The price of the vehicle as per quotation was ₹ 6,89,511/-. The complainant purchase the vehicle from the O.P.No.1 on hypothecation by making payment of ₹ 6,89,511/- together with other expenses excluding the expenses for registration and other relevant papers on 23.09.2013.

            The vehicle was financed by UBI to the tune of ₹ 6,27,000/- and the complainant had to make payment of ₹ 10,572/- as EMI to the bank. The registration No. of the vehicle was AS06M-8342. The complainant alleges that the vehicle was found to be defective since purchasing having several defects. The complainant went to Guwahati on 28.10.2013 by plying the vehicle himself, but after arriving at Guwahati it was found that the tail gate glass of the vehicle was broken without any external impact. The servicing centre in Guwahati Viz- Sristi Chevrolet confirmed that the glass was broken automatically without any external impact. On 14.11.2015 in the morning when the complainant was heading for his office from his residence at Laluka towards Bairagimath, Dibrugarh the vehicle stopped and stranded in Amolapatty area. The complainant informed the matter to the O.P. No.1 and the vehicle was picked up by them and placed in the servicing centre of O.P. No.1 on the same day. The service manager of O.P. No.1 issued a vehicle inventory check list-cum-repair order dated 14.11.2015. The concerned officials of O.P. No.1 informed the complainant vide letter dtd. 17.11.2015 that the engine of the vehicle shall have to be removed for the repairing job.

            At the time of taking delivery, the works manager of O.P. No.1 assured the complainant that they will intimate him within 2/3 days but after lapse of several days receiving no intimation from O.P. No.1 the complainant made an enquiry visiting personally the service center and came to know that the piston and ‘cameshaft’ (as told) of the engine of the vehicle were changed by disassembling the engine without permission from the complainant bringing down the value of the vehicle substantially to a low price. Since 14.11.2015 the vehicle had been lying in the servicing centre and the complainant had to bear the monthly EMI @ ₹10,572/- p.m. without availing the service of the vehicle. The complainant on 14.12.2015 served a legal notice on O.P. No.1 through Ld. Advocate Shri A.K. Baruah but the O.P. No.1 did not comply with the legal notice.

            The complainant alleges that all the officials of O.P. No.1, in connivance with each other are practicing illegal and unfair trade practice and committing breach of trust upon their own consumers which are very much clear from a simple perusal of the case of the complainant. Having no alternative the complainant had preferred this complaint petition claiming to direct the opposite parties :

1. To replace the vehicle of the complainant with a brand new vehicle of same nature.
2. To pay ₹ 1,500/- per diem from the date of taking delivery of the vehicle till the date of return the same to the complainant.
3. To pay a compensation of ₹ 2,00,000/- for causing unnecessary harassment, mental anxiety, causing loss of profession to the complainant by adopting unfair trade practice by the opposite parties and
4. To pay the cost of litigation.

            The complainant in para of his complaint mentioned that O.P. No.1 had delivered the complainant a vehicle with manufacturing defect.

            The case was accordingly registered and after registering the case notices were issued to the opposite parties and the opposite parties contested the case by filing their W/S.

O.P. No.1 in their W/S has denied their liability in this case and has claimed that the complaint is not maintainable in law as well as on facts and the petition is devoid of merit and barred under the Principles of Estoppels, waivers, acquiescence, equity, natural justice and good conscience. This opposite party delivered the vehicle in question to the complainant after completion of all paper works by the complainant and on receipt of the Banker’s cheque from the financer, i.e. United Bank of India. There was no delay in making delivery of the vehicle on the part of O.P. No.1 as alleged by the complainant. According to the O.P. No.1 the vehicle Chevrolet ENJOY Diesel bearing Regd. No.AS06M-8342 had no defect as alleged by the complainant the breaking of the tailgate glass was reported to have occurred due to an accident and moreover breaking of tailgate glass do not come under manufacturing defect or otherwise. O.P. No.1 is not responsible for any manufacturing defects as it is not the manufacturer of the vehicle. The liability of O.P. No.1 is limited to after sale services only during warranty period. It was submitted by this O.P. that the vehicle of the complainant bearing Regd. No.AS06M-8432 was placed before O.P. No.1 on 14.12.2015 and the complainant reported that his vehicle stopped in running condition. The technician team discovered that the issue needs to be addressed at the workshop for which the vehicle was towed to the workshop with due consent and permission of the complainant and accordingly O.P. No.1 open a job card for carrying out running repair, checking starting problem and checking tyre rotation under the instruction and permission of the complainant and the complainant acknowledged the said instructions on the repairing order dtd. 14.11.2014 of the O.P. No.1. During the course of undertaking the repairing/checking works as assigned it was discovered that the vehicle had developed a problem in the ‘timing side’ and repairing of the same required removal of engine and thereafter the matter was informed to the complainant vide letter dtd. 17.11.2015. The complainant acknowledged the receipt of that letter subscribing his hand over the copy my client’s letter and thereby consented for carrying out the necessary repair works. Accordingly the repair work/maintenance was carried out by the answering O.P. No.1 and the said vehicle was made road-worthy under the terms of warranty. The vehicle was made ready for delivery on 07.12.2015 and the same was informed to the complainant. In the meantime the company also arranged/approved taxi fare rendered but the complainant had demanded for a brand new vehicle for his wrongful gain and thereby refused to take the delivery of his vehicle. Despite several intimation and reminders the complainant paid no heed to take back the delivery of his vehicle by paying necessary expenses of lubricant and other items which do not come under warranty. The O.P. No.1, having no alternative sent a notice/official reminder dtd. 12.12.2015 through registered post asking the complainant to take back the delivery of the repaired vehicle as it was ready for delivery and moreover it had been occupying a considerable space at the workshop of O.P. No.1. The complainant for his wrongful gain by misrepresenting and suppressing material facts sent the legal notice dtd. 14.12.2015 for the greed of a new vehicle, however the same was duly replied by O.P. No.1 through their counsel on 05.01.2016. This O.P. has further confirmed in their W/S that this O.P. even got approved the taxi fare amounting to ₹ 10,500/- and also extended warranty of two years for the complainant.

            The O.P. No.1 further states that the vehicle had been plied for 42,617 km and moreover the complainant had never complained of any such defect in the course of servicing of the vehicle during the tenure of two years. This O.P. in para 14 of their W/S states that though the vehicle was ready for delivery but the complainant willfully evaded taking delivery of the vehicle. O.P. No.1 duly handed over the vehicle to Smti. Tanveera Farhana Ahmed, the daughter of the complainant. The complainant had taken delivery of the vehicle through said daughter by acknowledging the proper and satisfactory repairing as per requirement of the complainant. The complainant had also accepted the taxi claim of ₹10,511/- by the O.P. and as such the instant case before the Ld. Forum is sheer abuse of the process of law for which the case is liable to be dismissed.

            O.P. No.2 Chevrolet Sales India Pvt. Ltd. submitted their W/S denying manufacturing defects in the vehicle purchased by the complainant from O.P. No.1.

            It is submitted on behalf of O.P. No.2 that the complainant purchased his vehicle on August  31, 2013. The complainant’s first allegation is that on Oct 28, 2013 the tailgate glass broke on its own. The second allegation of the complainant is that on November 14, 2015, the vehicle broke down and services were undertaken on the vehicle without his permission.

            The O.P. No.2 states that as per their records, complainant reported at the workshop on 24 November 2013 with a requirement to replace tail gate glass. Glass breakage is not covered under warranty.

            In so far as the first allegation of the tail gate glass breaking on its own is concerned, the same, it is respectfully submitted, is an irresponsible allegation. There is no question of the tail gate glass breaking on its own. However there stand to be a number of external factors that can lead to such breaking; - such as a piece of stone thrown up by the tires of the same vehicle or other vehicles moving along side or behind. Such a pebble or piece of stone thrown up by the tires of the moving vehicle, whether the same vehicle or another vehicle, if it impacts the tailgate glass; then it can break the glass. Besides the same, cycles and rickshaws, not infrequently, do come into contact with the back side of the vehicle in busy or crowded conditions. Then again the possibility of some external interference cannot be ruled out. In short, as submitted respectfully, there stands to be a number of extraneous factors that can cause the breaking of the glass cover of the backlight. Whereas on account of mere wind pressure et cetera, it is inconceivable that the tail gate glass would break on its own. As stated, it is reiterated that the allegation of the tail gate glass breaking on its own is an irresponsible allegation and is refuted and denied. Despite this the glass was replaced under warranty as a gesture of goodwill.

            Regarding the second allegation of the breakdown of the vehicle and undertaking services on it without permission, the O.P. No.2 submitted certain aspects beforehand. The O.P. No.2 has attached along with their W/S the complete records of vehicle history and maintenance as Annexure R2/A. On each visit of the vehicle to the workshop, a job card is opened which records the details of the concerns lodged by or on behalf of the complainant and as also the details of the services undertaken and provided at the workshop. The veracity and correctness of such details recorded is verified through signature by or on behalf of the owner of the vehicle on the said job card itself. Since the records of vehicle history and maintenance are nothing but the sum aggregate of all the job cards and since the details on each job card stand verified as to their correctness as stated ; it may kindly be seen that the details recorded in the records of vehicle history and maintenance, in turn, contain admitted and undisputed details.

            The O.P. No.2 has also attached herewith the prescribed servicing/maintenance schedule for the vehicle. The same is attached as Annexure R2/B. And now the Honourable Forum from the records of vehicle history and maintenance, from serial number 15 thereof, would see that servicing of the vehicle has been irregular in terms of not following the schedule completely. There has been acute negligence and callousness on part of the complainant in maintaining the vehicle as per the prescribed servicing/maintenance schedule. There are other instances of breach of prescribed maintenance/servicing schedule in the records of vehicle history and maintenance.

            Servicing of the vehicle as per the prescribed schedule is absolutely critical for maintaining the vehicle in good order and condition as is universally known. Not only in the course of such servicing replenishment of various consumables and essential fluids and liquids are undertaken; but necessary adjustments et cetera are also undertaken along with an examination of the vehicle in course of such servicing. Servicing as per the prescribed schedule not only maintains the vehicle in good order and condition but is also a preventive mechanism by spotting needs of adjustments or any attuning in good time. Such flagrant breach in undertaking servicing, as demonstrated above, has the potential to adversely impact the performance of state of good order of the vehicle. And if such potential materializes into reality, then as is obvious; the responsibility and blame for the same lies wholly on the owner of the vehicle.

            Despite such clear negligence and callousness on part of the complainant in maintaining the vehicle as per the prescribed servicing schedule; the services on the occasion of concerns reported on November 14, 2015, as may be seen from serial number five thereof, were attended to under warranty protection as may be seen from the details listed under the concerned columns against the said entry.

            Thus despite there being no provision of undertaking the repairs under warranty, the said services were provided under warranty with respect to the concerns arising on November 14, 2015 and this is in spite of the gross callousness and negligence in maintaining the vehicle as per the prescribed servicing/maintenance schedule.

            In such facts and circumstances, it is rather uncalled for on part of the complainant to seek to blame the opposite parties.

            The allegation that the services on this occasion were undertaken without taking permission is false and incorrect. The documents showing permission to have been taken is being attached along with their W/S as Annexure R2/C.

            In the present circumstances, despite there being clear negligence in maintaining the vehicle as per the prescribed servicing schedule which is bound to affect the good order of the vehicle and as also that the concern had developed at an aggregate of 42617 km which in itself negates any possibility of inherent manufacturing defect and makes it much more to be on account of clear callousness in maintaining the vehicle; the services were still provided under warranty; which is something, it is respectfully submitted, to be appreciated rather than deprecated by the complainant. To sum up, in so far as the breakdown on November 14, 2015 is concerned; there being gross callousness in maintaining the vehicle as also the aggregate mileage at which it took place; there was no question of application of warranty terms and conditions on account of negligence in fulfilling the prescribed servicing schedule and as also that at such aggregate mileage, possibility of inherent manufacturing defect stood to be practically nil. Still services were provided under warranty which is something, as submitted to be appreciated rather than deprecated by the complainant.

            In this case from the complainant’s side evidence in affidavit of the complainant Md. Akram Ahmed has been filed. In his evidence the complainant has stated that the complainant is a permanent resident within the jurisdiction of this Commission he was the Branch incharge of the Assames Daily Newspaper ‘Dainik Janasadharan’ and the News Channel ‘Assam Talk’ having office at Bairagimath, Dibrugarh. The complainant booked an ENJOY Diesel vehicle of Chevrolet India by making a payment of ₹ 20,000/- (Rupees twenty thousand)only vide SBI cheque No.408860 dated 22.08.2013. The complainant was introduced by the officials of O.P. No.1 M/s Pasupaty Traders, authorized dealer/sales and servicing centre of Chevrolet Sales India Pvt. Ltd. to the Manager of UBI, Dibrugarh Branch who after due persuasion granted loan to purchase the vehicle by fixing regular EMI at ₹ 10,572/- payable to the bank and accordingly due payment was made by the bank. Thereafter the vehicle was handed over to the complainant on 27.09.2013 after 27 days from the date scheduled for delivery. Ext. 1 is the invoice of ₹6,89,511 and Ext. 2 is the sale certificate. The price of the vehicle as per quotation was ₹ 6,89,511/-. The complainant purchase the vehicle from the O.P.No.1 on hypothecation by making payment of ₹ 6,89,511/- together with other expenses excluding the expenses for registration and other relevant papers on 23.09.2013.

            The vehicle was financed by UBI to the tune of ₹ 6,27,000/- and the complainant had to make payment of ₹ 10,572/- as EMI to the bank. The registration No. of the vehicle was AS06M-8342. Ext. 4 is the Regd. Certificate. The complainant alleges that the vehicle was found to be defective since purchasing having several defects. The complainant went to Guwahati on 28.10.2013 by plying the vehicle himself, but after arriving at Guwahati it was found that the tail gate glass of the vehicle was broken without any external impact. The servicing centre in Guwahati Viz- Sristi Chevrolet confirmed that the glass was broken automatically without any external impact. Ext.6 is the certificate issued by Sristi Chevrolet. On 14.11.2015 in the morning when the complainant was heading for his office from his residence at Laluka towards Bairagimath, Dibrugarh the vehicle stopped and stranded in Amolapatty area. The complainant informed the matter to the O.P. No.1 and the vehicle was picked up by them and placed in the servicing centre of O.P. No.1 on the same day. The service manager of O.P. No.1 issued a vehicle inventory check list-cum-repair order dated 14.11.2015. The concerned officials of O.P. No.1 informed the complainant vide letter dtd. 17.11.2015 that the engine of the vehicle shall have to be removed for the repairing job. Ext. 7 is the check list and Ext. 8 is the letter of O.P.

            At the time of taking delivery, the works manager of O.P. No.1 assured the complainant that they will intimate him within 2/3 days but after lapse of several days receiving no intimation from O.P. No.1 the complainant made an enquiry visiting personally the service center and came to know that the piston and ‘cameshaft’ (as told) of the engine of the vehicle were changed by disassembling   the engine without permission from the complainant bringing down the value of the vehicle substantially to a low price. Since 14.11.2015 the vehicle had been lying in the servicing centre and the complainant had to bear the monthly EMI @ ₹10,572/- p.m. without availing the service of the vehicle. The complainant on 14.12.2015 served a legal notice on O.P. No.1 through Ld. Advocate Shri A.K. Baruah but the O.P. No.1 did not comply with the legal notice. Ext. 9 is the legal notice.

            The complainant alleges that all the officials of O.P. No.1, in connivance with each other are practicing illegal and unfair trade practice and committing breach of trust upon their own consumers which are very much clear from a simple perusal of the case of the complainant. Having no alternative the complainant had preferred this complaint petition seeking relief for replacement of the vehicle with a new one, compensation, cost of this case and other reliefs.

            O.P. No.1 in this case has submitted evidence on affidavit of two witnesses. DW-1 is Shri Nabin Mazumdar, who is the duly constituted Attorney of O.P. No.1 and at the time of swearing his evidence he was working as the manager of O.P.No.1 (Ext.-A is the certified copy of General Power of Attorney). He has stated that the complainant purchased a Chevrolet Enjoy Diesel vehicle from O.P.No.1 and O.P. No.1 delivered the vehicle to the complainant after completion of all paper works and on receipt of Banker’s cheque from the financer, i.e. United Bank of India and there was no delay on the part of O.P. No.1 in making delivery of the vehicle to the complainant.

            The vehicle of the complainant bearing Regd. No.AS06M/8342 had no defects as alleged by the complainant, witness stated. He has claimed that O.P. No.1 is not responsible for any manufacturing defects as it is not the manufacturer of the vehicle and the liability of O.P. No.1 was limited to after sale services only during the warranty period and the detailed service and warranty terms and conditions are contained in the owner’s manual which was under custody of the complainant. Moreover breaking of tailgate glass do not come under manufacturing defect or otherwise.

            It is submitted by DW-1 that on information/request of the complainant his vehicle bearing Regd. No.AS06M/8342 was addressed by O.P.No.1 on 14.12.2015 as the complainant had reported that his vehicle stopped in running condition. Technician team of O.P.No.1 discovered that the issue needs to be addressed at the workshop with the consent and permission of the complainant and accordingly DW-1 opened a job card for carrying out running repair, checking starting problem and tyre rotation under the instruction and permission of the complainant who acknowledged the said instruction on the repair order dtd. 14.12.2015. During the course of repairing, checking works it was discovered that the vehicle had developed a problem in the ‘Timing Side’ and repair of the same required removal of engine and therefore the matter was informed to the complainant through letter dated 17.11.2015. The complainant acknowledged the receipt of the said letter by subscribing his hand over the copy my clients letter and thereby consented for carrying out the necessary repair works. Accordingly the repair works/maintenance was carried out and the vehicle was made road-worthy under the terms of warranty. The vehicle was made ready for delivery on 07.12.2015 and the same was informed to the complainant. It is also submitted by this DW that in the meantime O.P. No.1 also arranged/approved taxi fair but the complainant demanded for a new vehicle for his wrongful gain and thereby refused to take delivery of the vehicle. Despite several intimations and reminders the complainant paid no heed to take back his vehicle and to pay the necessary expenses of lubricants and other items which do not come under warranty. Having no alternative O.P. No.1 sent a notice/final reminder dtd. 12.12.2015 through registered post asking the complainant to take back the delivery of the repaired vehicle as it was ready for delivery and moreover it had been occupying a considerable space at the workshop of O.P. No.1.

            DW-1, in his evidence on affidavit has submitted that the complainant for his wrongful gain and by misrepresenting and suppressing the material facts sent a legal notice dtd. 14.12.2015 to O.P.No.1 only for the greed of a new vehicle. O.P. No.1 duly replied the legal notice through his advocate vide dtd. 05.01.2016. While serving the said notice dtd. 05.01.2016 concerned advocate most inadvertently had mentioned the date in the aforesaid reply and also mentioned the dates in his signatures as 05.01.2015 instead of 05.01.2016.

            Ext. –B is the copy of job card dtd. 14.11.2015.

            Ext. – C is the copy of the repair order dtd. 14.11.2015.

            Ext. – D is the copy of the letter dtd. 17.11.2015 of O.P. No.1.

            Ext. – E is the copy of O.P.’s letter dtd. 12.12.2015.

            Ext. – F is the copy of postal receipt.

Ext. – G is the office copy of the reply dtd. 05.01.2016 of O.P. No.1 through its advocate.

            This DW further submits that the vehicle of the complainant had been plied for 42,617 km and moreover the complainant had never complained of any such defects in course of servicing of the vehicle during the tenure of two years. In absence of any deficiency in service on the part of O.P. No.1 the instant case against the opposite parties is liable to be dismissed with cost.

            DW-1 specifically submits that though the vehicle of the complainant was ready for delivery, the complainant willfully evaded taking delivery of the vehicle. O.P.No.1 after receiving the order dtd. 18.02.2016 of the Ld. Forum duly handed over the said vehicle to the daughter of the complainant namely Tanveera Farhana Ahmed. The complainant had taken the delivery of the vehicle through his daughter by acknowledging properly and satisfactory repairing as per requirement of the complainant. The complainant had also accepted the taxi claim of ₹10,500/- only provided by the O.P. and the O.P. vide its letter dtd. 14.02.2016 informed the complainant about the same and thus the instant case before this Forum is cheer abuse  of the process of law for which the case is liable to be dismissed with cost. While the said letter dtd. 19.02.2016 the O.P.No.1 most inadvertently in paragraph No.1 mentioned as “your vehicle bearing Regd. No.AS06M/8342 was toe by us to our workshop at PN Road, Chiring Chapori, Dibrugarh on 14.11.2014” instead of “your vehicle bearing Regd. No.AS06M/8342 was toe by us to our workshop at PN Road, Chiring Chapori, Dibrugarh on 14.11.2015”. Ext.-H is the office copy of O.P.s’ letter dtd. 19.02.2016.

            DW-2 in this case is Shri Biswa Kumar Das who was the Customer Care manager of O.P.No.1. DW-2 has submitted that the complainant purchased a Chevrolet Enjoy Diesel vehicle bearing Regd. No.AS06M/8342 from O.P. No.1 after making due enquiry and on being fully satisfied of the various terms and conditions of such purchase. OP No.1 arranged for loan from United Bank of India for purchasing the said vehicle and O.P. No.1, i.e. M/s Pasupaty Traders had no role in the process of loan as the loan is sanctioned by the bank on credibility of the purchaser/complainant. OP No.1 delivered the vehicle to the complainant after completion of all paper works by the complainant and on receipt of Banker’s cheque from the financer. There was no delay on the part of O.P.No.1 in making delivery of the vehicle to the complainant.

            It is stated by DW-2 in his evidence that the vehicle bearing Regd. No. AS06M/8342 had no defect as alleged by the complainant. The breaking of tail gate glass was reported to have occurred due to an accident and moreover breaking of tail gate glass do not come under manufacturing defect or otherwise. O.P. No.1, i.e. M/s Pasupaty Traders is not the manufacturer of the vehicle and as such is not responsible for any manufacturing defects. The liability of O.P. No.1 is limited to after sale services only during the warranty period.

It is submitted by DW-2 that on information/request of the complainant his vehicle bearing Regd. No.AS06M/8342 was addressed by O.P.No.1 on 14.12.2015  as the complainant had reported that his vehicle stopped in running condition. Technician team of O.P.No.1 discovered that the issue needs to be addressed at the workshop with the consent and permission of the complainant and accordingly DW-1 opened a job card for carrying out running repair, checking starting problem and tyre rotation under the instruction and permission of the complainant who acknowledged the said instruction on the repair order dtd. 14.12.2015. During the course of repairing, checking works it was discovered that the vehicle had developed a problem in the ‘Timing Side’ and repair of the same required removal of engine and therefore the matter was informed to the complainant through letter dated 17.11.2015. The complainant acknowledged the receipt of the said letter by subscribing his hand over the copy my clients letter and thereby consented for carrying out the necessary repair works. Accordingly the repair works/maintenance was carried out and the vehicle was made road-worthy under the terms of warranty. The vehicle was made ready for delivery on 07.12.2015 and the same was informed to the complainant. It is also submitted by this DW that in the meantime O.P. No.1 also arranged/approved taxi fair but the complainant demanded for a new vehicle for his wrongful gain and thereby refused to take delivery of the vehicle. Despite several intimations and reminders the complainant paid no heed to take back his vehicle and to pay the necessary expenses of lubricants and other items which do not come under warranty. Having no alternative O.P. No.1 sent a notice/final reminder dtd. 12.12.2015 through registered post asking the complainant to take back the delivery of the repaired vehicle as it was ready for delivery and moreover it had been occupying a considerable space at the workshop of O.P. No.1.

            DW-2, in his evidence on affidavit has submitted that the complainant for his wrongful gain and by misrepresenting and suppressing the material facts sent a legal notice dtd. 14.12.2015 to O.P.No.1 only for the greed of a new vehicle. O.P. No.1 duly replied the legal notice through his advocate vide dtd. 05.01.2016. While serving the said notice dtd. 05.01.2016 concerned advocate most inadvertently had mentioned the date in the aforesaid reply and also mentioned the dates in his signatures as 05.01.2015 instead of 05.01.2016.

            Ext. –B is the copy of job card dtd. 14.11.2015.

            Ext. – C is the copy of the repair order dtd. 14.11.2015.

            Ext. – D is the copy of the letter dtd. 17.11.2015 of O.P. No.1.

            Ext. – E is the copy of O.P.’s letter dtd. 12.12.2015.

            Ext. – F is the copy of postal receipt.

Ext. – G is the office copy of the reply dtd. 05.01.2016 of O.P. No.1 through its advocate.

            This DW further submits that the vehicle of the complainant had been plied for 42,617 km and moreover the complainant had never complained of any such defects in course of servicing of the vehicle during the tenure of two years. In absence of any deficiency in service on the part of O.P. No.1 the instant case against the opposite parties is liable to be dismissed with cost.

            DW-2 specifically submits that though the vehicle of the complainant was ready for delivery, the complainant willfully evaded taking delivery of the vehicle. O.P.No.1 after receiving the order dtd. 18.02.2016 of the Ld. Forum duly handed over the said vehicle to the daughter of the complainant namely Tanveera Farhana Ahmed. The complainant had taken the delivery of the vehicle through his daughter by acknowledging properly and satisfactory repairing as per requirement of the complainant. The complainant had also accepted the taxi claim of ₹10,500/- only provided by the O.P. and the O.P. vide its letter dtd. 14.02.2016 informed the complainant about the same and thus the instant case before this Forum is cheer abuse of the process of law for which the case is liable to be dismissed with cost. While the said letter dtd. 19.02.2016 the O.P.No.1 most inadvertently in paragraph No.1 mentioned as “your vehicle bearing Regd. No.AS06M/8342 was toe by us to our workshop at PN Road, Chiring Chapori, Dibrugarh on 14.11.2014” instead of “your vehicle bearing Regd. No.AS06M/8342 was toe by us to our workshop at PN Road, Chiring Chapori, Dibrugarh on 14.11.2015”. Ext.-H is the office copy of O.P.s’ letter dtd. 19.02.2016.

            In this case O.P. No.2 has submitted evidence on affidavit on behalf of Chevrolet Sales India Pvt. Ltd. separately.

            Shri Sanjay Agarwal, duly qualified Mechanical Engineer providing after sales services to the vehicle manufactured by General Motors India Pvt. Ltd. and working as Head Field Operations and After Sales, GM India After Sales with Chevrolet Company of General Motors India Pvt. Ltd. has stated that on the basis of knowledge derived from records and personal knowledge and belief held to be true besides legal advice received and held to be correct has submitted his evidence on affidavit.

            It is submitted on behalf of O.P. No.2 that the complainant purchased his vehicle on August 31, 2013. The complainant’s first allegation is that on Oct 28, 2013 the tailgate glass broke on its own. The second allegation of the complainant is that on November 14, 2015, the vehicle broke down and services were undertaken on the vehicle without his permission.

            The O.P. No.2 states that as per their records, complainant reported at the workshop on 24 November 2013 with a requirement to replace tail gate glass. Glass breakage is not covered under warranty.

            In so far as the first allegation of the tail gate glass breaking on its own is concerned, the same, it is respectfully submitted, is an irresponsible allegation. There is no question of the tail gate glass breaking on its own. However there stand to be a number of external factors that can lead to such breaking; - such as a piece of stone thrown up by the tires of the same vehicle or other vehicles moving along side or behind. Such a pebble or piece of stone thrown up by the tires of the moving vehicle, whether the same vehicle or another vehicle, if it impacts the tailgate glass; then it can break the glass. Besides the same, cycles and rickshaws, not infrequently, do come into contact with the back side of the vehicle in busy or crowded conditions. Then again the possibility of some external interference cannot be ruled out. In short, as submitted respectfully, there stands to be a number of extraneous factors that can cause the breaking of the glass cover of the backlight. Whereas on account of mere wind pressure et cetera, it is inconceivable that the tail gate glass would break on its own. As stated, it is reiterated that the allegation of the tail gate glass breaking on its own is an irresponsible allegation and is refuted and denied. Despite this the glass was replaced under warranty as a gesture of goodwill.

            Regarding the second allegation of the breakdown of the vehicle and undertaking services on it without permission, the O.P. No.2 submitted certain aspects beforehand. The O.P. No.2 has attached along with their W/S the complete records of vehicle history and maintenance as Ext. R2/A. On each visit of the vehicle to the workshop, a job card is opened which records the details of the concerns lodged by or on behalf of the complainant and as also the details of the services undertaken and provided at the workshop. The veracity and correctness of such details recorded is verified through signature by or on behalf of the owner of the vehicle on the said job card itself. Since the records of vehicle history and maintenance are nothing but the sum aggregate of all the job cards and since the details on each job card stand verified as to their correctness as stated ; it may kindly be seen that the details recorded in the records of vehicle history and maintenance, in turn, contain admitted and undisputed details.

            The O.P. No.2 has also attached with their W/S the prescribed servicing/maintenance schedule for the vehicle. The same is attached as Ext. R2/B. The records of vehicle history and maintenance, from serial number 15 thereof, has reflected that servicing of the vehicle has been irregular in terms of not following the schedule completely. There has been acute negligence and callousness on part of the complainant in maintaining the vehicle as per the prescribed servicing/maintenance schedule. There are other instances of breach of prescribed maintenance/servicing schedule in the records of vehicle history and maintenance.

            Servicing of the vehicle as per the prescribed schedule is absolutely critical for maintaining the vehicle in good order and condition as is universally known. Not only in the course of such servicing replenishment of various consumables and essential fluids and liquids are undertaken; but necessary adjustments et cetera are also undertaken along with an examination of the vehicle in course of such servicing. Servicing as per the prescribed schedule not only maintains the vehicle in good order and condition but is also a preventive mechanism by spotting needs of adjustments or any attuning in good time. Such flagrant breach in undertaking servicing, as demonstrated above, has the potential to adversely impact the performance of state of good order of the vehicle. And if such potential materializes into reality, then as is obvious; the responsibility and blame for the same lies wholly on the owner of the vehicle.

            Despite such clear negligence and callousness on part of the complainant in maintaining the vehicle as per the prescribed servicing schedule; the services on the occasion of concerns reported on November 14, 2015, as may be seen from serial number five thereof, were attended to under warranty protection as may be seen from the details listed under the concerned columns against the said entry.

            Thus despite there being no provision of undertaking the repairs under warranty, the said services were provided under warranty with respect to the concerns arising on November 14, 2015 and this is in spite of the gross callousness and negligence in maintaining the vehicle as per the prescribed servicing/maintenance schedule.

            In such facts and circumstances, it is rather uncalled for on part of the complainant to seek to blame the opposite parties.

            The allegation that the services on this occasion were undertaken without taking permission is false and incorrect. The documents showing permission to have been taken is being attached along with their W/S as Ext. R2/C.

            In the present circumstances, despite there being clear negligence in maintaining the vehicle as per the prescribed servicing schedule which is bound to affect the good order of the vehicle and as also that the concern had developed at an aggregate of 42617 km which in itself negates any possibility of inherent manufacturing defect and makes it much more to be on account of clear callousness in maintaining the vehicle; the services were still provided under warranty; which is something, it is respectfully submitted, to be appreciated rather than deprecated by the complainant. To sum up, in so far as the breakdown on November 14, 2015 is concerned; there being gross callousness in maintaining the vehicle as also the aggregate mileage at which it took place; there was no question of application of warranty terms and conditions on account of negligence in fulfilling the prescribed servicing schedule and as also that at such aggregate mileage, possibility of inherent manufacturing defect stood to be practically nil. Still services were provided under warranty which is something, as submitted to be appreciated rather than deprecated by the complainant.

The complainant in this case submitted their written argument on 30.07.2022. O.P. No.1 and No.2 submitted their written argument on 05.09.2022. Both the parties had submitted their written arguments in length. In his written argument the complainant has submitted that the Ext. 6 issued by Sristi Chevrolet of Guwahati had certified that the tail glass of the vehicle was broken automatically without any external impact. On scrutiny we have found that Ext.-6 is not the certificate issued by Sristi Chevrolet. Ext.-6 is the repair order issued by Pasupati Traders. The complainant submitted that from Ext. No.8 issued by O.P. No.1 reflected that the vehicle bears starting problem and engine had to be removed to repair the problem. The complainant lateron came to know that only the “camshaft” will be removed. But the pistons of the engine were changed which diminished the value of the vehicle to a great extent. All these were done by O.P. No.1 keeping the complainant in dark. Inspite of all those repairs the problem of the vehicle faced by the complainant could not be resolved. It was the obligation of repairing and replacing any part shown it to be defective with new part or parts equivalent at no cost for the parts or labour as decided by the Hon’ble Apex Court in the highly published Maruti Udyog Limited case, but the O.P. themselves violated the directions and claimed money from the customers while the defects were attributable to faulty manufacture of materials. It was a settled rule that on sale of a motor vehicle by a manufacturer there may be an implied warranty that it was reasonably fit for or adapted to the uses for which it was made or sold. Such warranty could not be excluded by the silence of the contract of sale. The O.P.s cannot escape from its bounding obligation on the pretext of prescribed schedule was absolutely critical for maintaining the vehicle in good order and conditions as stated in the statement of O.P. No.2 through its DW-2. In this connection it was stated that there was no negligence in presenting the vehicle for proper service as per the manual negligence and allegations of callousness on the part of the customer cannot be a ground from escaping the liabilities and responsibilities of opposite parties. The officials of O.P. No.1, in connivance with each other were practicing illegal and unfair trade practice and committing breach of trust upon their own customers which were clearly evident from a simple perusal of the case of the complainant.

            In their written argument O.P. No.1 has categorically denied their liability claiming that their liability is limited to after sale services only during the period of warranty which were duly undertaken by the O.P. No.1. O.P. No.1 has submitted that no allegation of practicing illegal and unfair trade practice and committing breach of trust or negligence is attributable to O.P. No.1.

O.P. No.2 in this case has submitted their written argument on 05.09.2022. Along with other arguments this O.P. has submitted that the allegations that the services on this occasions were undertaken without taking permission is false and incorrect. The documents shown permission to have been taken has been attached to the pleadings as Ext. R2/C. They have cited the ruling of the Hon’ble Supreme Court of India in Maruty Udyog Ltd. versus Sushil Kr. Gagotra and another, AIR 2006 S/C 1586. In this case the Hon’ble Supreme Court has ruled that where warranty terms and conditions are provided for and applicable; then the same shall apply and services shall be provided within its terms and conditions. Ext. R2/D of the O.P. is the terms and conditions of the warranty policy, from which it may be seen that the responsibility of the manufacturer is to repair suitably any concern as is arising from any inherent manufacturing defect. In this present circumstance, despite there being clear negligence in maintaining the vehicle as per the prescribed servicing schedule which is bound to affect the good order of the vehicle and as also that the concern had developed at an aggregate of 42,617 km which in its negate any possibility of inherent manufacturing defect and makes it much more to be on account of clear callousness in maintaining the vehicle: the services were still provided under warranty, which is something to be appreciated rather than deprecated by the complainant.

Now Points to be Decided.

1. Whether the complainant is a consumer under the Consumer Protection Act.
2. Whether this Commission has jurisdiction to try this case.
3. Whether the opposite parties are liable for deficient and negligent services towards the complainant.
4. Whether the complainant is entitled to the reliefs claimed by him.

Points Decided

1. The complainant is a consumer of the opposite parties under Consumer Protection Act and this fact is not denied by the opposite parties.
2. This Commission has proper territorial and pecuniary jurisdiction to try this case.
3. From careful perusal of complaint petition, W/S filed by each of the opposite parties, evidences led by both the parties we have found that the opposite party No.1 in this case failed to return back the vehicle of the complainant after repairing the defects in their assured time. The vehicle was given in custody of O.P. No.1 by the complainant on 14.11.2015 and at the time of taking delivery, the Works Manager of O.P. No.1 assured the complainant that they will intimate him within 2/3 days but the vehicle was not delivered after repairing to the complainant for which the complainant had suffered financial loss. O.P. No.1 in their evidences stated that during the course of repairing, checking works it was discovered that the vehicle had developed a problem in the “timing side” and repairing of the same required removal of engine and thereafter the matter was informed to the complainant through letter dtd. 17.11.2015. The complainant acknowledged the receipt of the letter as exhibited vide their Ext.-D. It is seen from Ext. –E of O.P. No.1 that this O.P. informed the complainant through their letter dtd. 12.12.2015 that the vehicle of the complainant was well-repaired and ready for delivery at their end since 7^th December, 2015. After receipt of that letter also the complainant sent a legal notice to O.P. No.1 through his advocate on 14.12.2015 demanding a brand new car in place of his Enjoy Diesel car No.AS06M/8342 along with ₹ 2,00,000/- as cost of loss of profession, pain and sufferings. Thereafter the complainant filed this complaint on 18.02.2016 along with petition No.88/16 u/s 13(iii)(b) of the Consumer Protection Act with prayer to hand over his vehicle bearing registration No.AS06M/8342 to the complainant till final decision is made. Ld. Commission/Forum passed an interim order directing O.P. No.1 to hand over the vehicle to the complainant till final replacement is made. Ext. No. ‘H’ of O.P. No.1 reflects that O.P. No.1 in consultation with their company representative agreed to pay taxy claim of ₹ 10,500/- to the complainant and extended warranty for two years had been approved. And the vehicle was delivered to Ms. Tanveera Farhana Ahmed, daughter of the complainant on 19.02.2016. Seen though O.P. No.1 failed to deliver the vehicle of the complainant timely yet they tried to satisfy the complaints of the complainant. We have found less reason to book O.P.No.1 for deficient and negligent services towards the complainant.

Regarding manufacturing defects, we went thoroughly through all the documents/exhibits. We have found no material to establish manufacturing defect (if any) was there in the vehicle of the complainant. The complainant, we believe, has failed to prove his allegation of having manufacturing defects in his vehicle. As established by the opposite parties that despite there being clear negligence in maintaining the vehicle as per prescribed servicing schedule which is bound to affect the good order of the vehicle is also that the concern had developed at an aggregate of 42,617 km which in itself negates the possibility of inherent manufacturing defect. On perusal of the vehicle history and maintenance record (Ext. R2/B) it is seen that servicing of the vehicle had been irregular in terms of not following the schedule completely. There had been negligence on the part of the complainant in maintaining the vehicle. Under such circumstances it is not possible on the part of the Commission to be satisfied regarding having of manufacturing defects in the vehicle concerned. Moreover no expert opinion was submitted by the complainant to satisfy his claim, for which it is difficult to make somebody liable for manufacturing defects.

From all above discussions and observations this Commission unanimously comes to a conclusion that the complainant is not entitled to get any relief as claimed by him in his complaint petition. The interim relief granted to the complainant by this Commission/Forum vide order dtd. 18.02.2016, we think is sufficient to meet the justice to the complainant.

This instant C.C. No.08/16 is disposed of on contest and the opposite parties are set forth at liberty from this case.

 Send copy of this judgement to both the parties for record.