Punjab

Ludhiana

CC/19/208

M/s Punland Tint. - Complainant(s)

Versus

M/s Toyata Kirloskar Motor - Opp.Party(s)

Ajay Chawla Adv.

13 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:208 dated 03.05.2019.                                                        Date of decision: 13.04.2023.

 

M/s. Punland Tint Industries Pvt., 53, Adarsh Colony, Rajguru Nagar, Ludhiana through its authorized signatory Sahil Singhania.                                                                                                                                 ..…Complainant

                                                Versus

1. M/s. Toyota Kirloskar Motor Limited, No.24, 10^th Floor, Canberra Block Near Mallaya Hospital, Vital Mallya Road, Banglore-560001.
2. Globe Toyota, Globe Automobiles Pvt. Ltd.,  G.T. Road, Jugiana, Ludhiana-141020.
3. M/s. ANR Motors (P) Ltd., (Castle Toyota), Near Jalandhar Kunj, Kapurthala Road, Jalandhar through its M.D./Director.

…..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants           :         Sh. Ajay Chawla, Advocate.

For OP1                         :         Sh. M.S. Sethi, Advocate.

For OP2                         :         Sh. Jyoti Sarup, Advocate.

For OP3                         :         Exparte.

 

ORDER

PER JASWINDER SINGH, MEMBER

1.                In brief, the facts of the case are that Sahil Singhania is the authorized signatory of the complainant firm and the complainant firm for the personal use of one of its director purchased one car make Fortuner model code No.GUN156R-SXTHHX from opposite party No.3 on 20.03.2018 through invoice No.INV180000111 for total sum of Rs.31,99,000/-, manufactured by opposite party No.1. The complainant stated that opposite party No.2 and 3 are dealers and authorized service centre of opposite party No.1 who are equally responsible for any manufacturing defect in the said vehicle. After purchasing the said vehicle, the complainant started using it but said vehicle started making problem as steering of the said vehicle started bubbling and break of the said vehicle were not working properly. The complainant approached opposite party No.2 being authorized service center and apprised them about the above said problem.  Opposite party No.2 serviced the said vehicle on 27.06.2018, when the said vehicle was being driven for 10385 KMs and at that time thereby resolving the above said problem the opposite party skimmed the front rooter which was under warranty. The complainant requested the opposite parties that the said vehicle has been newly purchased and if there is any such problem in the front rooter so the same should be replaced as the breaking system of the vehicle has to work properly and opposite party No.2 assured the complainant that by skimming of front rooter the breaking system will be now in perfect working condition. However the complainant remained under a stress while driving the said vehicle as the same problem continued. When the said vehicle was driven for 13267 KM, the complainant has to again approach the opposite party No.2 as the said problem again started, but opposite party No.2 instead of resolving the said problem, again skimmed the rooters which was under warranty, even though the complainant requested the opposite parties to replace the rooters but the opposite party No.2 did not listen to any genuine requests of the complainant. The complainant lodged a complaint bearing no.TCM0918270540 to the opposite party no.1 but all in vain as no action has been taken till date. The complainant has also sent a email dated 17.10.2018 requested the opposite party to resolve the said problem from the vehicle of the complainant as the complainant continued suffering at the hands of the opposite parties but the opposite parties never gave any heed to the genuine requests of the complainant. The complainant further stated that on 23.10.2018 when one of the directors has gone to Delhi along with his family in the said vehicle for attending the function, then again on the way the said vehicle started making trouble as the breaking system was not properly working and ultimately leaving no other remedy, the complainant order to avoid any mis-happening/accident was compelled to change the said break shoe by spending an amount of Rs.5322/- and the same was duly informed to the opposite parties but the opposite parties again failed to give any response to the complainant.  The complainant further stated that it seems that the opposite parties have intentionally and malafidely provided a defective vehicle to the complainant and due to the said reason is now not resolving the genuine problem of the complainant, even though the said vehicle is under warranty. Opposite party no.1 is very reputed company, due to which the complainant trusted and purchased the said vehicle from opposite party no.3 (which is manufactured by the opposite party no.1) but due to the above said negligence and deficiency in service and unfair trade practice, the complainant is suffering at the hands of the opposite party. The complainant again and again approached the opposite for resolution of the above said problem in the breaking system of the above said vehicle but the opposite parties have till date failed to resolve the problem of the complainant. It has also came to the notice of the complainant that the said problem is in every vehicle of same model i.e. Fortuner of opposite party no.1 and the opposite parties are still experimenting as to how to resolve the said problem in the breaking system. The breaking system in the car is the most essential elements and after knowing the said facts the complainant is under huge stress to drive the said vehicle.  The complainant served a legal notice dated 26.12.2018 upon the opposite parties but no reply was given. Hence this complaint whereby the complainant prayed for issuing direction to the opposite parties to replace the complete discs and pads of the vehicle with new one and to resolve the problems in the breaking system of the vehicle and also to pay compensation of Rs.10,00,000/- for mental agony, pain, deficiency in service as well as litigation expenses.

2.                Upon notice, opposite party No.1 filed written statement and by taking preliminary objections, assailed the complaint on the ground of lack of jurisdiction of this Commission; bad for non-joinder of necessary party; suppression of material facts; the complainant has no locus standi to file the complaint and lack of cause of action. Opposite party No.1 stated that it is nowhere disclosed in the compliant that who are paying petrol/diesel expenses/driver salary etc. in case of personal use of one of the director and whether said director paying back the cost etc. to the complainant from its salary or not and no document has been submitted in this regard. Opposite party No.1 further stated that its liabilities are limited to the extent of repair or replacing the defects parts under the warranty obligations consisting terms and conditions as per owner’s manual received by the complainant along with the vehicle at the time of its delivery from opposite party No.3 but the complainant has not put any grievances against opposite party No.1 and it has been unnecessarily dragged into litigation. Opposite party No.1 further alleged that the vehicle was used for commercial purposes by the complainant. The complainant has not adhered warranty schedule as well as failed to avail free services which are necessary for proper working and running of the new car on road and thus, has violated the terms & obligations while getting services of unauthorized workshop/mechanic who may be acted negligent. 

                   On merits, opposite party No.1 reiterated the crux of averments made in the preliminary objections. Opposite party No.1 admitted the factum of purchase of vehicle by the complainant. The complainant has not pleaded true and actual facts as the tax invoice dated 27.06.2018 relied upon by the complainant nowhere showing resolving of alleged said problem existing on 27.06.2018 the opposite party skimmed the front rooter which was under warranty. No complaint was lodged against any kind of defects or existence of any defect or non-removing of any defects nor the complainant has disclosed the date of lodging complaint TCM0918270540. The complainant raised the warranty car service issue and further in the email, nothing has been disclosed that what type of problem so far exists in the vehicle and as such, the complainant seems to take undue benefits of email dated 17.10.2018. No specific problem has been pleaded by the complainant. Opposite party No.1 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                Opposite party No.2 filed separate written statement by taking preliminary objections and assailed the complaint on the ground of lack of jurisdiction; the complainant is not a consumer as per section 2(d) of the Consumer Protection Act;  lack of cause of action; the complainant is estopped by his act and conduct; concealment of true and material facts. Opposite party No.2 stated that the vehicle in question is being used for commercial purpose and as such, the complainant is not a consumer as per provisions of Consumer Protection Act. The complainant has not disclosed the name of Director of the company for whose use the same was purchased.

                   On merits, opposite party No.2 reiterated the crux of averments made in the preliminary objections.  The other averments of the complaint have been denied as incorrect and in the end, dismissal of the complaint has been prayed.

4.                Notice was issued to opposite party No.3 through registered post on 22.05.2019 but none turned up for opposite party No.3 despite service and as such, opposite party No.3 was proceeded against exparte vide order dated 11.07.2019.

5.                In support of his claim, Sh. Sahil Singhania, authorized signatory of the complainant firm tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainants also tendered documents Ex. CA/1 is the resolution dated 15.01.2019, Ex. C1 to Ex. C5 are the certificates U/s.65 B of the Indian Evidence Act,  Ex. C6 is the legal notice dated 24.12.2018, Ex. C7 and Ex. C8 are the postal receipts, Ex. C9 is the copy of tax invoice dated 20.03.2018 and closed the evidence.

6.                On the other hand, counsel for opposite party No.1 tendered affidavit Ex. RA1 of Mr. Deepak Rao K R, Company Secretary and Manager, Legal and Secretarial Division of opposite party No.1 along with documents Ex. R1/1 is the copy of special power of attorney and closed the evidence.

                   The counsel for opposite party No.2 did not formally tendered any evidence and suffered statement that written reply filed by opposite party No.2 and documents may be read as evidence of opposite party No.2 and closed the evidence.

7.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written replies along with affidavits and documents produced on record by both the parties.

8.                Admittedly, the complainant purchased vehicle on 20.03.2018 from opposite party No.3 who along with opposite party No.2 are authorized dealers and service centers of opposite party No.1, the manufacturer of the vehicle. The complainant experienced a problem in the vehicle with regard to its steering and complained of bubbling and malfunctioning of braking system to opposite party No.2. On 27.06.2018, when the vehicle had covered a distance of 10385 KMs, opposite party No.2 serviced the vehicle and also skimmed the front rooter of the vehicle in order to remove the defects. Again on 08.08.2018, the same problem resurfaced and was taken care of by opposite party No.2 on 08.08.2018 and rooter skimming was done. On both occasions, the vehicle was under warranty and at that time, it had covered a distance of 13267 KMs. On 23.10.2018, when one of the directors of the complainant form was travelling to Delhi, again there was a trouble in the braking system and he had to replace brake show by spending Rs.5322/-. Although the complainant has alleged the manufacturing defect in the vehicle but no expert opinion was presented by the complainant in order to substantiate his claim. Further in the prayer, the complainant has sought relief of replacement of complete discs and pads of the vehicle. It is also the stand of the opposite parties that warranty of the vehicle is limited to the replacement of defective parts and not the vehicle. Although the opposite parties have claimed the rendering the services to the complainant as and when he approached them but still the defect in the braking system persisted and remained unresolved. Opposite party No.1 admitted the receipt of complaint No. TCM0918270540 and email dated 17.10.2018 but did not take active steps to resolve the issue. Hence there is deficiency in service on the part of opposite party No.1 and 3 only.

9.                In Maruti Udyog  Ltd. Vs Susheel Kumar Gabgotra and another 2006 (4) SCC (644) whereby it has been held by the Hon’ble Supreme Court of India that where defects in various parts of a car are established, direction for replacement of the car would be justified. “Replacement of the entire item or replacement of defective parts only called for.” Further in C.N. Ananthram Vs M/s. Fiat India Ltd. and others 2010 (4) CPJ 56 passed by the Hon’ble Supreme Court of India whereby the complainant sought replacement or full refund of the amount along with interest for “defect in the engine of the vehicle”. The Hon’ble Supreme Court has held that the replacement of the defective engine with new engine would suffice. Further, in Tata Motors Ltd. Vs Sharad and others in 2016 (SCC) NCDRC 1600 whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that whether the vehicle purchased by the complainant suffered certain defects and also used for considerable kilometers, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi has held that a new vehicle cannot be replaced and defective part of old vehicle has to be replaced.  Hence it will be in fitness of things if opposite party No.1 and 3 are directed to replace the complete set of braking discs and pads of the vehicle free of costs within 30 days from the date of receipt of copy of order along with composite costs of Rs.10,000/-.

9.                As a result of above discussion, the complaint is partly allowed with direction to opposite party No.1 and 3 to replace the complete set of braking discs and pads of the vehicle free of costs within 30 days from the date of receipt of copy of order. Opposite party No.1 and 3 shall further pay a composite costs of Rs.10,000/- (Rupees Ten Thousand only) to the complainant within 30 days from the date of receipt of copy of order. However, the complaint as against opposite party No.2 is dismissed. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President

 

Announced in Open Commission.

Dated:13.04.2023.

Gobind Ram.

 

 

M/s. Punland Tint Vs M/s. Toyota Kirloskar                          CC/19/208

Present:       Sh. Ajay Chawla, Advocate for complainant.

                   Sh. M.S. Sethi, Advocate for OP1.

                   Sh. Jyoti Sarup, Advocate for OP2.

                   OP3 exparte.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to opposite party No.1 and 3 to replace the complete set of braking discs and pads of the vehicle free of costs within 30 days from the date of receipt of copy of order. Opposite party No.1 and 3 shall further pay a composite costs of Rs.10,000/- (Rupees Ten Thousand only) to the complainant within 30 days from the date of receipt of copy of order. However, the complaint as against opposite party No.2 is dismissed. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President

 

Announced in Open Commission.

Dated:13.04.2023.

Gobind Ram.