M/s T.R. Sawhney Motor Pvt. Ltd. V/S Shri Harish Umat
Shri Harish Umat filed a consumer case on 20 Jun 2020 against M/s T.R. Sawhney Motor Pvt. Ltd. in the North East Consumer Court. The case no is cc/227/2012 and the judgment uploaded on 02 Jul 2020.
Delhi
North East
cc/227/2012
Shri Harish Umat - Complainant(s)
Versus
M/s T.R. Sawhney Motor Pvt. Ltd. - Opp.Party(s)
20 Jun 2020
ORDER
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST
Facts germane as culled out in the present complaint are that the complainant had purchased a Maruti Wagon R BXI BS-IV car of Bakers Chocolate color bearing chassis no. MA3EWDE1S00296970, Engine no. K10BN7068123, petrol variant and Registration no. DL 3C BS 3644 (hereinafter referred to as the said vehicle) manufactured by OP2 from OP1 on 03.10.2011 for a total sale price of Rs. 4,36,870/- vide retail invoice cum sale agreement no. 4104. But from the inception of the purchase of the said vehicle, the OP did not provide its RC and even the auto card of the said vehicle was activated after six months of purchase even though the activation time for the same is 24 hrs and also 3000 exchange points on it for loyalty programme were not credited in the complainant’s account despite complainant having purchased an Alto K-10 car on 10.02.2012 in the name of one Shri Raj Kumar. The OPs had also failed to provide the body cover, basic kit and steering cover of the said vehicle to the complainant at the time of its purchase and only after repeated request and demand, handed over the body cover to complainant on 07.11.2011 i.e. after a month. Further, the back seats of the vehicle did not open and the second gear of the vehicle did not function when the air conditioner in the vehicle was on on mode for which the complainant had made a complaint on 29.03.2012 but in vain. The said vehicle could not be driven on CNG when the complainant took the same on 18.04.2012 to Etawah (UP) and only on the complaint made on 19.04.2012, the defect was rectified but again after two days on 22.040.2012, when the complainant drove the said vehicle to Etawah, the AC of the vehicle started getting over heated for which the complainant sent an email dated 23.04.2012 to OPs but no action was taken thereafter on 04.05.2012 when the complainant was returning to Delhi from Haridwar in the said vehicle, it caught a short fired near Meerut (UP) and a complaint no. 582595 was made in this regard with OPs and the vehicle was taken to OPs workshop on 08.05.2012 and after repairs was handed over to the complainant on 15.05.2012 and a sum of Rs. 506/- was charged from the complainant or battery burn issue. But the battery of the said vehicle did not function properly even though the life of the same was upto two years of usage or vehicle having run up to 40000 Kms. Therefore, for all the above issues, the complainant approached the OPs in the third week of May 2012 asking them to either remove the defect in the said vehicle or replace the vehicle but OP refused to do either. The complainant was therefore compelled to file the present complaint alleging deficiency of service on the part of OPs causing him mental pain and agony and prayed for issuance of direction against the OPs to either refund the sale price of the vehicle i.e. Rs. 4,36,000/- or replace the same with a new vehicle, pay Rs. 2,00,000/- as compensation for mental pain and agony and Rs. 25,000/- towards cost of litigation.
Complainant has attached copy of purchase invoice dated 03.10.2011, copy of emails dated 23.04.2012 exchanged between complainant and OPs, copy of job card no. JC12001993 dated 08.05.2012 for car repairs for a total bill amount of Rs. 506/-, alongwith details of job / repairs done by OP1, copy of loyalty programme statement / auto point statement dated 16.05.2012 in the name of complainant issued by OP for 3000 balance exchange points, copy of PUC certificate issued by Transport Department GNCTD copy of receipt dated 25.10.2011 issued by OP1 in favour of complainant acknowledging receipt of Rs. 18,029/- towards registration / road charges, hypothecation and parking fee. The complainant also filed an application seeking directions to OPs to issue original RC of the said vehicle.
Notice was issued to the OPs on 26.06.2012. OPs entered appearance. OP1 filed its written statement vide which it took the preliminary objection that the vehicle history of the subject vehicle would reveal that the said vehicle in question was being run with a considerable mileage thereby having no faults in it and the same was sold by OP1 to the complainant as a brand new car in a very good condition and its RC was also handed over to the complainant on 12.07.2012 on proper receiving and therefore the allegation of the complainant in this regard are not sustainable. OP1 took the defence that OP2 is one of the most repudiated and trusted automobile company in India having more than 54% share in the Indian Auto mobile Market and is best known for producing best quality car, the subject vehicle in question i.e. Wagon R being one of its best selling model and also that OP2 provides a warranty of each new Maruti vehicle to be free from any defect in material and workmanship and the warranty was valid for a period of two years from date of delivery to its first owner or 40000 kms whichever is earlier with respect to Maruti Wagon R and during this was period, OP2’s only obligation is to repair or replace, as per its discretion, any part or equivalent if such a part found defective due to faulty material workmanship and this warranty is subject to terms and conditions of warranty and service booklet and limitation on the same was spelt out i.e. warranty not applicable for clause (a) to (m). OP1 further resisted the complaint on grounds that OP1 and OP2 are to separate legal entities, OP1 being car dealer selling vehicles manufactured by OP2 and removal of defects by replacement of any kind can only be asked for from OP2 (manufacturer) but such replacement excluded replacement of the vehicle as there was no manufacturing defect in the said vehicle, the same having undergone stringent quality check and certify as FCOK (Final Check Ok ) before being sold and delivered and both OPs had conducted PDI (Pre delivery Inspection) of the said vehicle before selling it to the complainant in perfect road worthy condition and the complainant had also taken delivery of the said vehicle from OP1 after taking test drive and being fully satisfied. OP raised objection to the maintainability of the complaint on grounds that the onus to prove the manufacturing defect is on the complainant but he has not laid any evidence to prove the same and therefore the complaint is devoid of merit. On merits, OP1 rebutted the allegation by denying the defective back seat or second gear of the vehicle, over heating of AC or any complaint regarding its malfunctioning received from the complainant in March 2012-April 2012. The OP1 denied any alleged short fire emerging from the said vehicle in early May 2012 as alleged by the complainant and submitted that no such documents has been placed by complainant to prove the same. Per contra OP1 submitted that when the vehicle checked thoroughly by its officers in May 2012, no serious fault in its battery was found and the vehicle was in a very fit condition and therefore no deficiency of service can be made out on the part of OP1. Lastly, OP submitted that the complainant is well within its right to get the subject vehicle examined from other workshop as well or from OP2 but he has failed to do so and even otherwise OP1 is not competent to replace the same because it is only a dealer running of workshop. For all the defence so taken, OP1 prayed for dismissal of the complaint. The complainant filed a written representation that he had purchased the vehicle in question from OP1 to be fitted with CNG kit but OP1 handed over the RC after 7-8 months of purchase in June-July 2012 which was only for petro fuel and not CNG and even the insurance of the said vehicle was for petrol fuel only. The short circuit in the said vehicle is clear from the job card dated 08.05.2012 and CNG leakage from job card dated 20.06.2012 which could be life threatening and the damages could not be reclaimed from the insurance company due to CNG petrol issue. OP2 filed its written statement in which it took the preliminary objection of complainant not being consumer of OP2 within the meaning of Section 2(1)(d) Consumer Protection Act (CPA) as he had entered into a sale agreement with OP1 on execution of an Order Booking Form and not any contract with OP2 for rendering any service or delivery of goods nor had the complainant paid any amount towards the price of vehicle in question to OP2, which was not privy to sale contract executed between complainant and OP1 and therefore OP2 is neither unnecessary nor a proper party to the present complaint. OP2 took the defence that it is a manufacturer which does not sell vehicles manufactured by it to any individually customer directly and sells the vehicles to its authorize dealer under the dealership agreement against C Form under Central Sales Tax Act and therefore the rights, title and ownership of the vehicles are transferred to dealer as soon as the same are handed over at the factory of OP2 to transporter for onward transportation to dealer destination, OP1 being one of them. The relationship between OP1 & OP2 is on Principal-to-Principal basis and governed by dealership agreement as per Clause C of the said agreement. The dealers including OP1 have no authority to represent to OP2 as per clause 5 of the said agreement nor is OP2 responsible for any act of omission or commission on the part of OP1 latter being a separate and independent legal entity to carry on sale and after sale service. OP2 uttered that there is no deficiency of service or unfair trade practice on its part within the meaning of Section 2(1)(g), 2(1)(o) and 2(1)(r) of CPA in as much as OP2 has sold more than 1.2 million Wagon R cars all over India. OP2 submitted that the complainant had received auto card from OP1 as per its own admission but was not entitled to get 3000 exchange points on its card (allegedly issued with the vehicle in question) as the benefited of the exchange policy of OP1 could be availed only by the same person who had earlier purchased one of its cars and not for any other car bought by some other individual which then shall be considered a separate transaction and cannot be treated as part of exchange whatsoever as was the complainant’s case since as Maruti Alto K-10 was purchased on 10.02.2012 by some other person. On merits OP2 urged that the complainant had brought the vehicle in question to the workshop of OP1 on 23.10.2011 and 10.03.2012 for obtaining first and second free inspection service at 897 kms and 4952 kms respectively. The said vehicle was also brought to OP1 on 18.11.2011, 09.12.2011 for washing and cleaning and in none of the dates, the complainant pointed out any defect. The vehicle was again brought to the workshop of OP1 on 21.03.2012 for problem of low pick up on CNG problem which was rectified and was never again complaint of in the subsequent visit on 03.04.2012 and 12.04.2012 at 5664 kms and 5778 kms respectively. The vehicle was inspected and the CNG was found outside fitted resulting in the vehicle falling out of warranty as per clause (f),(g) and (j) of warranty policy. The vehicle was brought again to OP1 on 20.04.2012, 08.05.2012 and 20.06.2012 for warranty service and despite the vehicle being out of warranty being CNG fitted from outside, warranty services were provided as a goodwill gesture. OP2 submitted that as per vehicle history, complainant had not approached OPs in the third week of May 2012 for removal of any defects but for battery issue which was attending to by OP2 and vehicle was handed over to the complainant. The complainant obtained third free inspection service on 03.08.2012 at 11027 kms after expiry of stipulated mileage despite which free inspection service was provided to him. Therefore, OP2 submitted it had discharged its warranty obligation and stated that the subject vehicle had completed more than 11000 kms within 10 months which shows that it was in perfect road worthy condition. Lastly, OP2 submitted that since the vehicle had become out of warranty immediately on fitment of CNG from outside, complainant is not entitled to warranty services due to violation of warranty policy and further has failed to place on record any proof of the vehicle catching fire on 04.05.2012 as alleged by him for which no FIR was lodged with police authority. For all the defence taken in its written statement, OP2 prayed for dismissal of the complaint.
Rejoinder in rebuttal to the defence taken by OP2 was filed by the complainant in which the complainant stated that OP2 is a necessary party being a service division and also manufacturer of the vehicle in question and alleged that the same was falsely inspected by OP2 and sold out cleverly to the complainant and therefore OP2 is also liable to pay complainant for the relief claim. Complainant submitted that the subject vehicle was taken by him to OP1 workshop where he had registered the complaint for the same to the staff of OP1 but the same was not paid any heed too as also many of complainant’s emails and phone calls which went un-responded to. Therefore complainant prayed for relief claimed.
Rejoinder in rebuttal to defence taken by OP1 was filed by the complainant vide which the complainant submitted that at the time of the purchase of the subject vehicle, he had specifically shown his desire for purchasing a car with CNG kit installed but OP1 suggested the complainant to buy the without fitting the CNG fitment with assurance that the CNG kit shall be later fitted by OP1 at a lower rate than charged by OP2 and had also undertaken that the RC for the subject vehicle to be obtained from transport authority shall have CNG endorsement on it and believing the said assurance the complainant bought the subject vehicle without CNG but when he received the RC of the same from OP1 belatedly after eight months on 12.07.2012 as per OPs own admission even though as per the booklet issued by OPs mentioned that every customer shall have the right to receive the RC of the concerned vehicle from the dealer within a period of month of purchase and that too after filing of the present complaint on 06.06.2012, the same did not bear CNG endorsement and even the fitment of the CNG was not satisfactory for which reason the vehicle caught fire due to improper wiring at the time of filling CNG which could be life threatening. Besides this, complainant alleged manufacturing defect in the subject car with respect to back seat function, second gear problem and Its AC which were overlooked by OP1 and the same also could not be removed by OP1 even after proper and regular service of the subject vehicle carried by OP1 which was unfair. Complainant further submitted that on the advice of OP1 to get the vehicle inspected from any other dealer / company authorize by OP2, complainant contacted AAA Vehicles Aides Pvt. Ltd., located at Okhla Industrial Area, New Delhi in early October 2012 and the same company sent its representative to take the subject vehicle to the said company workshop, however its representative could not take the vehicle due to its non-functioning and left the same at the residence of complainant by merely issuing a receipt of visit dated 08.10.2012 which acts itself is of gross negligence on the part of OP2 but in the said report, the experts clearly stated that the vehicle in question is not in a position to ply on the roads. Complainant further urged that it was incorrect on the part of OPs to state that auto card facility was not available on the vehicle in question as the OP1 had itself delivered the auto card to the complainant and started its facility after five months from the date of purchase and therefore OP1 is contradicting its own stand. Complainant submitted that the body cover of the subject vehicle was given to complainant by OP1 on 07.11.2011 i.e. after one month of its purchase and has still not provided the steering cover and basic kit to the complainant nor did it rectify the defective back seat of the car and second gear problem despite knowing fully well that the said defect was a manufacturing defect and second gear problem was related to installation of CNG kit which kit was installed by OP1 itself. Therefore, the complainant alleged deficiency of service against OP1 for failure to perform its part of obligation and entertain the complainant and also manufacturing defect in the subject vehicle entitling him to relief claim.
Evidence by of way affidavit was filed by the complainant exhibiting in reassertion of his grievance against the OPs. The complainant urged that he was allured by OP1 of a handsome profit in the cost of buying a car without CNG fitment and to get the same fitted in the car later by OP1 apart from other grievance already taken in the pleadings filed by it.
Evidence by way of affidavit was filed by OP1 urging the defence taken in the written statement.
Evidence by way of affidavit was filed by OP2 vide which it placed on record copy of dealership agreement between OP1 & OP2, copy of warranty policy terms and conditions with warranty obligations and limitations thereto, copy of job cards dated 23.10.2011 and 10.03.2012, copy of job cards dated 21.03.2012, 03.04.2012, 20.04.2012, 08.05.2012, 20.06.2012 and 03.08.2012, copy of order of Hon'ble Supreme Court in Maruti Suzuki India Ltd. Vs Purushottam Lal (HUF) and Anr. In C.A. No. 708/2007 and judgment of Hon’ble NCDRC in V.K. Gupta & Sons Vs M/s Maruti Udyog and ORS in RP no. 3677/2006 as Exhibit R-2 / 1 to R-2/11.
Written arguments filed by all parties in reassertion / reiteration of their respective grievance / defence OP2 placed on record the vehicle history report with respect to the subject vehicle of the complainant of eleven visits made between 23.10.2011 to 03.08.2012 of vehicle having run more than 11000 kms in these ten months.
We have heard the rival contentions of complainant and OP2 by way of arguments advanced before us, given a thoughtful consideration to the same and have carefully examined the entire material on record placed by each one of the parties before us. OP1 did not appear despite sufficient opportunity granted to address arguments since the other two parties had already concluded arguments on 15.06.2020 and on request of counsel for OP1, last opportunity was granted for date instant to address oral arguments but OP1 failed to do so nor responded to communication made by this Forum’s office in this regard. A specific query was put to the complainant as to when and where did he get the CNG kit installed in the subject vehicle. The complainant, without any proof getting the same installed from OP1 as alleged by him, gave a vague reply of OP1 having installed the same somewhere from outside. However, he failed to produce any bill or details / name of the outlet or any mechanic who had installed the said CNG kit. Regarding the status of loan repayment of the said car to HDFC Bank Ltd. with which subject vehicle is hypothecated, the complainant submitted that the loan has been paid off to HDFC.
The key issue for consideration in the present case is whether the subject vehicle in question suffered from any manufacturing defect or not which may entitle / disentitle complainant of relief if any as the case may be.
Defect is defined in clause 2(1)(f) of CPA and the onus to prove manufacturing defect in a vehicle is on the consumer alleging it and same should be proved by expert evidence, in absence of which no liability could be attributed to manufacturer to compensate the consumer. The Hon'ble National Commission in Swaraj Mazda Ltd. Vs P.K. Chakkrappore 2004 (I) CPC 421 (NC) was also of the view that expert opinion should be obtained from government organization, institution / agency for going in to technical issue and submission of report that effect. The Hon'ble National Commission in Lovely Autos Vs. Harmesh Lal (2007) I CPJ 312 (NC) held that no manufacturing defect warranted replacement of vehicle or refund of its price on failure of complainant to establish defect in the engine as alleged. The Hon'ble National Commission in Chandeshwar Kumar Vs Chairman TELCO Ltd. (2006) 3 CPR 402 (NC) dismissed the complaint where no expert opinion was placed on record as to whether vehicle had any manufacturing defect and no additional material or evidence brought on record to prove allegation of vehicle having any manufacturing defect. Similar view was taken by Hon’ble NCDRC in TATA Engineering and Locomotive Company Vs. Sunil Bhasin (2008) II CPJ 111 (NC) where neither the car was sent to any workshop nor any independent expert opinion obtained about alleged defects. Further the Hon'ble National Commission in Pawan Kumar Vs Nissan Motors India Pvt. Ltd. I (2018) CPJ 425 (NC) observed that the complaint was sketchy and vague and no application was given by the petitioner / complainant to support his contention that the said vehicle had manufacturing defect and had also failed to place on record any expert opinion regarding the alleged manufacturing defect in his vehicle and had therefore dismissed the Revision Petition vide which the complainant had challenged the order of State Commission Jharkhand dismissing the complaint. The Hon'ble National Commission in Sanjay Singh Vs Dabloo Bhagat II (2018) CPJ 533 (NC) observed in a case where manufacturing defect in a vehicle was alleged that the complainant having failed to place on record any technical expert report to support his allegation of defective tractor or any inspection report from a mechanic to whom he had allegedly shown the said tractor and who had given the report of its engine been old and defective, that in failure to do so the complainant has failed to prove to his case of allegation of defect in the said vehicle and upheld the order of State Commission Bihar disallowing relief granted to the complainant by District Forum. In the present case, the complainant has never during the pendency of proceedings since June 2012 moved any application seeking mechanical inspection of the subject vehicle by a technical expert to determine manufacturing defect if any said vehicle beyond reasonable doubt which is also a legal / procedural requirement mandated under Section 13 1 (c) of CPA. The complainant also failed to corroborate the allegation the vehicle not road worthy as ruled by an expert report dated 08.10.2012 from one AAA Vehicles Aides Pvt. Ltd. which was never placed on record.
The Hon'ble National Commission in Moti Lal & Anr. Vs TATA Engineering Locomotive Co. Ltd and Ors III (2016) CPJ 578 (NC) and Kanchanamani Devi (dead) thr. LRS and Ors Vs TATA Motor Ltd. IV (2017) CPJ 614 (NC) had dismissed the complaints alleging manufacturing defect in the vehicle in cases where unauthorized modification and additions / alterations were made in the vehicles causing damage to its components viz chassis crack on the basis of affidavit of a technical expert and the complainant having failed to produced his best evidence to counter the same. The Hon'ble National Commission in Mahender Kumar Vs Hero Honda Motor Ltd. I (2017) CPJ 333 (NC) held in a case where manufacturing defect alleged in a vehicle of battery getting discharged and having been replaced twice, on the basis of one of the job cards where it was recorded that the complainant had got the outside mediator buzzer installed on the motor cycle and was advised to remove the same since the drainage of battery was because of faulty wiring of mediator buzzer that, in absence of no expert evidence on record placed by complainant to indicate that motor cycle was having some manufacturing defect leading to battery drain out and for installation of mediator buzzer, the complainant has failed to establish any manufacturing defect therein and therefore dismissed the revision Petition against Haryana SCDRC order which has set aside the order of District Forum allowing the complaint.
Having exhaustively dealt with the issue in hand in the light of legal discourse / settled proposition of law in the judgment afore-cited, we have arrived at a two-fold conclusion:
The complainant failed to prove any manufacturing defect in the vehicle in question as the complaint is vague, allegation therein unsubstantiated / uncorroborated and not supported by any report of a technical expert for which no application or permission was sought by the complainant under section 13 (1)(c) of CPA. The subject vehicle has run 11,000 + kms (approx) from October 2011 till August 2012 and on perusal of vehicle history report, there has been an endorsement of unapproved CNG fitment from visit for second free service in job card dated 10.03.2012 till last job card dated 03.08.2012 with job card recommendations “CNG outside fitted” when it was last brought for servicing on 03.08.2012 for third free service with mileage of 11,027 kms as can be corroborated / seen from vehicle history report filed by OP2. Even email dated 16.06.2012 by complainant to OP1 also acknowledges that his car had caught fired due to some CNG problem and OP1 had told him that “they will not provide any service for CNG problem” The Hon'ble National Commission in P.C Sunil (Dr.) Vs. TATA Engineering & Locomotive Co. Ltd. III (2016) CPJ 236 (NC) held in a case where vehicle had run 1,00,000 kms that no serious defect, much less any manufacturing defect therein and only in case of manufacturing defect can the vehicle be replaced or its sale consideration be refunded. Similar view was taken in TATA Motor Vs Sharad IV (2016) CPJ 145 (NC) where the vehicle had run 90,000 kms though has visited the workshop several times for repairs that no case is made out for replacement as no manufacturing defect is found in the vehicle. The Hon'ble National Commission in Baljeet Kaur Vs. Divine Motors III (2017) CPJ 599 (NC) held that where manufacturing defect is alleged, onus of proof has to be on complainant and in absence of expert opinion ,mere affidavit is no substitute for same and dismissed the Revision Petition. Therefore this issue is decided against the complainant in light of the settled law discussed above.
The auto card issue has already been put to rest since the complainant had not purchased the Maruti Alto K-10 in his name on 10.12.2012 and therefore could not avail for advantage exchanges point. However, with respect to the RC of the subject vehicle, on perusal of records, it has come to light that the OP had received a sum of Rs. 18,029/- from complainant in October 2011 vide receipt no. 41249 dated 25.10.2011. however, as per complainant’s allegations and OP1s own admission ‘that the subject RC was handed over to the complainant 12.07.2012, it is evident that there was indeed a delay in providing the same by OP1 and only to this limited extent to we find OP1 deficient in service and clearly OP2 cannot be faulted for the same.
Further both OPs during the course of arguments and judgments placed on record have established that the complainant had got done unauthorized modification in the subject vehicle by getting CNG kit installed in the said car not only adversely affecting its internal machinery and performance but also vitiating the warranty terms and conditions and the onus again shifted on the complainant to rebut the same by leading mechanical inspection for a technical expert report to negate the defence taken by the OPs. The judgments of Hon'ble Supreme Court and Hon’ble National Commission relied upon by the OP2 have also settled the law of manufacturer and dealer not being liable for malfunctioning of vehicle or allegations of manufacturing defects therein in the event of unauthorized alteration / modification in the vehicle got done by the owner. Therefore this issue is also decided against the complainant.
After having exhaustively discussed the legal proposition in the foregoing paras and after examining all the evidence placed on record, we allow the present complaint only to the limited extent of compensation to complainant against OP1 for delayed delivery of RC in July 2012 as act of deficiency of service as the same was delivered to complainant post issuance of notice of the present complaint which was ordered on 26.06.2012 and therefore direct OP1 to pay a compensation of Rs. 2,000/- to the complainant. The complainant is not entitled to any of the other relief prayed for as the prayer for the same is devoid of merits in the light of documents placed before us and settled proposition of law and therefore dismissed. Let the order for compliance by OP1 be fulfilled by it within 30 days of receipt of copy of this order.
Let the copy of this order be sent to both parties free of cost as per Regulation 21 (1) of Consumer Protection Regulation 2005.
File be consigned to record room.
Announced on 20.06.2020
(N.K. Sharma)
President
(Sonica Mehrotra)
Member
Consumer Court Lawyer
Best Law Firm for all your Consumer Court related cases.