District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.440/2018.
Date of Institution: 11.10.018.
Date of Order: 31.10.2022.
Kiran Deep Mittal S/o Shri Kuldeep Kumar R/o H.No. 18, Ground floor, Block -16, Spring Field colony, Sector-31, Faridabad Aadhaar No. 990471978250.
…….Complainant……..
Versus
1. M/s. VGO ford (authorized Dealer of Ford) 12/4, Sewa Grand Mall, Sarai Khawaja, Mathura road, sector-37, Fairdabad through its authorized signatory.
2. Mr. Jasraj Adhana, dealer General Manager (Driving) M/s. VGO Ford, 12/4, Sewa Grand Mall, Sarai Khawaja, Mathura road, Sector-37, Faridabad.
3. Ford India Pvt. Ltd., Regd. Office: Chengalpattu – 603204 through its Managing director/director/Principal Officer.
4. Ford India Pvt. Ltd., Corporate office: 5th floor, Plot No. 142, Chimes, 142, Sector-44 road,, Sector-44, Gurgaon through its Managing Director/Director/Principal Officer.
…Opposite parties……
Complaint under section-12 of
Consumer Protection Act, 1986.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. R.S.Sindhu, counsel for the complainant.
Sh. Dev Dutt Sharma, counsel for opposite parties Nos.1 & 2.
Ms. Yogita Sharma, counsel for opposite parties Nos. 3 and 4.
ORDER:
The facts in brief of the complaint are that the complainant had purchased one ford Figo bearing temporary No. HR-99-ACP-T-8723, chassis No. MAJGXXMTKGHG66878 from opposite party No.1 authorized dealer M/s. VGO Ford on 23.07.2018 vide invoice No. GST-197 for Rs.6,37,400/-. On 24.72018 complainant discovered the some fault in his vehicle and on 25.7.2018 complainant went to opposite parties Nos.1 & 2 for replacement. Opposite party No.2 told the complainant it might be some minor alignment issue and he will get this fixed. The car was left at the workshop for repairs and then delivered to the complainant’s home on next day i.e 26th July 2018 when the complainant was not available to take a test drive. The complainant took the vehicle to his office on 27.7.2018 and found that the issue was still there. The complainant again went to opposite parties Nos.1 & 2 on 28.7.2018 where opposite parties Nos.1 & 2 replaced all the parts i.e. tyres/cross/suspension/shockers and what not trying to fix the issue. It was again delivered to the complainant claiming that the issue had been fixed, but when the complainant drove the vehicle, he found that the issue was still not fixed. The trust of complainant on ford started to shake and he realized that the issue with vehicle was something beyond acceptable. The complainant went back to the opposite parties Nos.1 & 2 on Sunday 29.7.2018 for same issue, where the complainant was told that they could not do anything until the next day because they need help from ford India. On Monday Arun Mishra called complainant saying that the ford Engineer had given the instructions to the workshop for fixing the fault, but the engineer and himself (arun) would be visiting the workshop on Tuesday 31.7.2018 to ensure the vehicle was free from all the troubles, complainant should take the delivery on 1.8.2018. On 01.08.2018, complainant again went to workshop where Arun Mishra and the Ford Engineer were available and during the discussion it was found that vehicle was delivered without PDI. It was also claimed that vehicle had been fixed hence for confirmation of the fix ford engineer, VGO Ford Employee Mr. Jasraj and the complainant went for a test drive. Firstly opposite party No.2 Arun Mishra & Ford Engineer made a stop at the showroom for refuel, that’s when the complainant asked for letting him drive. But Mr. Adhana opposite party No.2 wanted to drive. As soon as they came out of the showroom and car picked up a speed of about 30-40 KMPH, complainant was able to notice the issue again. Then after about 10-15 minutes (travelling about 3-4 kms) of arguments, when the complainant finally said that he cannot accept the car like this lets go back to workshop and he want to talk to Arun Mishra further on this, Mr. Adhana parked the car on the road side for complainant to drive. When they were still outside the car, unfortunate a motorbike coming in a rash and negligent manner and struck the car of the complainant and damaged. The driver of motorbike was also injured and the General Manager of opposite party No.1 had taken him to hospital for treatment and an FIR No. 310 dated 02.08.2018 u/s. 279,337 IPC was lodged at P.S.Old Faridabad. The complainant was not at all responsible for this occurrence and at the time of accident the complainant was not driver of the said vehicle. The complainant contacted their concerned officers/officials of the office of opposite party No.1 and requested several times telephonically, as well as personnel visits as well as email of complainant either to replace the said defective car or to refund the amount, but there was no satisfactory response from the opposite parties and their concerned officer/official avoided to accede to the legitimate request of the complainant on the one pretext or the other. The complainant sent legal notice dated 27.8.2018 to the opposite party but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) either to replace the vehicle with new brand vehicle or to refund the cost of the said vehicle.
b) pay Rs. 2,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 11,000 /-as litigation expenses.
2. Opposite parties Nos.1 & 2 put in appearance through counsel and filed written statement wherein Opposite parties Nos.1 & 2 refuted claim of the complainant and submitted that the complainant had neither any cause of action nor locus standi to file the present case. The complainant had not come before this Hon’ble Court with clean hands and had suppressed the actual and material facts before this Hon’ble Forum. It was submitted that the complainant did not make the necessary of the insurance company regarding the accident in question and the complainant had no right to any claim from the answering opposite parties. The accident took place on the road and the vehicle was fully insured, so the insurance company was fully indemnify to make the compensation etc. and the answering opposite parties were not liable to make any single amount to the complainant. Opposite parties Nos.1 & 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3 Opposite parties Nos.3 & 4 put in appearance through counsel and filed written statement wherein Opposite parties Nos.3 & 4 refuted claim of the complainant and submitted that
on 28.07.2018, the subject car was brought by the complainant to the workshop of opposite party No.1 wherein under the instruction of the complainant, paint protection was carried out in the subject car. On 30.07.2018 the complainant reported the subject car to the workshop of opposite party No.1 with the concern of car vibration. The engineers of opposite party No.1 therefore inspected the subject car, however were allegedly unable to the resolve the issue to the satisfaction of the complainant. As a result of the same, on the very same day, the answering opposite party decided to depute a Ford engineer to inspect and examine the subject car. Post inspection and detailed examination, the service engineer deputed by the answering opposite party came to the conclusion that the tyres of the subject car required replacement, which were subsequently replaced and the concern was resolved. Subsequently, in order to validate resolution of the concern raised, it was agreed that on 01.08.2018 a joint road test of the subject car be carried out in the presence of the complainant and opposite party No.2 as well as of the answering opposite party. As a result, the complainant revisited the workshop of opposite party No.1 on 01.08.2018 and the subject car was taken on a joint road test by Mr. Jasraj Adhana (opposite party No.2), the complainant and Mr. Vincent (service engineer of the answering opposite party. During the course of the road test, the complainant had expressed to opposite party No.1 to drive the subject car himself which was agreed in order to validate and ensure that all concerns were resolved and the subject car was in a pristine condition. Opposite party No.1 accepted the request of the complainant and stopped the subject car on side of the road at the request of the complainant. The complainant thereafter moved to the driver seat and opposite party No.2 to the c-driver sat. At that instance when the subject car was stationary, a motorcyclist unfortunately hit the rear side of the subject car and was injured as result thereof. The injured was admitted to a nearby hospital after recovery filed a FIR on 02.8.2018 which was currently under investigation. According to the said FIR, the accident that took place when the motorcyclist hit the rear side of the subject car as its driver immediately braked after speeding the subject car from the right side of the road to the left. It may be noted that at no point had the service engineer of the answering opposite party driven the subject car or caused the accident. The same had been admitted by the complaint in various correspondences exchanged between the answering opposite parties. The post discussions and telecons, the answering opposite party came to a decision and offer the complainant replacement of the subject without settling any precedent or admitting any liability in the matter. The replacement was offered by the answering opposite party as a good will gesture and keep cordial relation with the complainant. The offer of replacement was communicated to the complainant vide email dated 02.08.2018 itself. Moreover, support of the complainant was sought by the answering opposite party to complete the legal and police formalities relating to the accident face. Request was also made to the complainant to provide his driving license, registration certificate of the subject car and its insurance policy to complete the formalities. However, the said request was vehemently denied by the complainant and no such copy had been provided to the answering opposite party till date. Since the complainant had failed to complete the legal and police formalities relating to the accident the said offer of replacement/refund lapsed. It was mutually agreed by the complainant and the complainant that the aforementioned replacement was subject to payment of differential cost of a new ford figo 1.5D Titanium. Accordingly, vide email dated 11.08.2018, the financial workings were emailed to the complainant in which the difference amount payable by the complainant for the replacement car was provided as Rs.1,09,274/-. Subsequently, a clarification email dated 13.08.2018 was sent to the complainant as the answering opposite party in the earlier email dated 11.08.2018 had not taken into account the discount earlier given to the complainant which included buy back. After adjusting the earlier discount and after giving additional discount of Rs.50,000/- in the replacement car in addition to the charges of insurance, registration tax, extended warranty, body care and other accessories, the on road price of the replacement car came out to Rs.2,16,774.-, The quote and the outline of the differential cost was also provided to the complainant vide the same email dated 13.08.2018. Upon receiving the email date 13.08.2018, the complainant raised many bald allegations against the answering opposite party such as manufacturing defect in the subject car and sought for refund the following amounts:
- Rs.10,000/- paid by the complainant by debit card to opposite party No.1 on 22.07.2018.
- Rs.2,30,000/- paid by the complainant by RTGS to opposite party No.1 on 23.07.2018.
- Rs.2,31,000/- paid by the complainant by RTGS to opposite party NO.1 on 23.07.2018.
- Discount and buy back price of Rs.1,12,000/- paid by opposite party No.1 to the complainant on 23.07.2018.
The complainant continued not to cooperate with the answering opposite party for getting the legal and police formalities completed and was continuously and unnecessarily blaming the answering opposite party for the cause of the accident despite being well aware that the accident was not caused by the service engineer of the answering opposite party, who was merely sitting on the rear passenger seat to ensure that the subject car had been repaired to its pristine condition. Answering opposite party went over and beyond its purview to help the complainant despite the fact that it was under no obligation to do so. The present case being an accidental case pertains to the insurance company and does not pertain to the answering opposite party as cost of damage caused due to an accident was not covered under the warranty policy. Given the continuous and erroneous allegations made by the complainant, the answering opposite party vide email dated 14.08.2018 informed the complainant the true facts and circumstances as aforementioned while specifically informing him of the principal to principal relationship shared between the answering opposite party and opposite party No.1 and denying any and all liability for the accident that occurred on 01.08.2018. Though denial of liability was communicated to the complainant, the answering opposite party vide the same email informed the complainant that request to opposite party No.1 had been made to provide any and all assistance to the complainant and that discussions and modalities of buy back of the subject car can be resumed post completion of all legal and police formalities. The email dated 14.08.2018 was responded to by the complainant on 17.08.2018 and denied the facts while reiterating the facts as mentioned in the present complaint. The complainant in the said email also alleged that the answering opposite party provided a faulty car to the complainant which was incorrect and vehemently denied for being incorrect and wrong. The email dated 17.08.2018 received by the complainant was replied back on the same day, wherein the answering opposite party informed the complainant that they stand by the email dated 14.08.2018 it sent to the complainant., It was further informed that the very purpose of deploying a service engineer was to resolve the concerns and issues and post inspection and after replacement of the tyres of the subject car, the said concerns were also resolved. Therefore, nothing remains in the present complaint as against the answering opposite parties. In the present case, the complainant had given clear consent to opposite party No.2 to drive the subject car and at the time of the accident the complainant was at the driver’s seat. The statement makes it clear that the answering opposite parties was merely an innocent party who was neither involved in the accident nor the accused in the FIR loded by the injured person on 02.08.2018. The present case being an accidental case was bad for non-joinder of proper and necessary parties as the complainant had not impleaded the respective insurance company herein i.e Tata AIG Insurance. The insurance company was a proper and necessary parties who can depose whether or not the complainant had raised any claim and if any amount had been disbursed by the insurance company. In case the complainant had been given relief by the insurance company, it is a settled proposition of law that the complainant cannot exercise forum shopping and be given additional relief for the same concern. The National Commission in a catena of judgements has held that if claim is made to the insurance company and relief is provided to the insured though not to his satisfaction, no further relief can be sought against the manufacturer. The complainant had also alleged that he had not received the pre-delivery inspection report by opposite party No.1 at the time of sale of the subject car. In this regards, it was most humbly submitted that the said allegation only pertains to opposite party No.1 and not the answering opposite party. The answering opposite cannot be liable for the alleged actions of opposite party No.1. However, the answering opposite ensures that the subject car prior to delivery to opposite party No.1 had been thoroughly inspected and passed its quality check-ups as well. The complainant had cleverly filed the present complaint and sought replacement of the subject car on the ground of manufacturing defect. The same was merely alleged as an afterthought and was an arbitrary attempt to harass the answering opposite party. Without prejudice to the contention that there was no manufacturing defect in the car, the warranty obligation of the answering opposite party was only to the extent of repair or replacement of an individual part which proves defective within the limit of warranty at no charge to the customer for parts and labor. The warranty policy does not provide for replacement of the entire car itself. Opposite parties Nos.3 & 4 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite parties – VGo Ford with the prayer to a) either to replace the vehicle with new brand vehicle or to refund the cost of the said vehicle. b) pay Rs. 2,00,000/- as compensation for causing mental agony and harassment .c) pay Rs. 11,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence Annx.C1 – Tax Invoice, Annx.C2 – Inventory Check Sheet, Annx. C/A – Inventory Check Sheet, Annx.A-2/B – Temporary certificate of registration, Annx.C-2/C – Private Car-Package Policy Certificate cum policy schedule cum receipt, Annx.C-3 – FIR, Annx.C-4 – Legal notice, Annx.C5 to Ananx.C8 – Courier receipts, Ex.C-9 - Notice 133 M.V.Act, Ex.C-10 – Reply to notice 133 M.V.Act, Ex.C-11 - Application to release the vehicle Ford Figo car bearing temporary NO. HR-99-ACP-T-8723 to the applicant on superdari, Ex.C-12 – Antim Report.
Despite last opportunity, evidence of opposite parties Nos.1 & 2 not filed. Hence, evidence on behalf of opposite parties Nos.1 & 2 closed vide order dated 16.01.2020.
On the other hand counsel for the opposite parties Nos.3 & 4 strongly agitated and opposed. As per the evidence of the opposite parties Ns. 3 & 4 – Annx.A - Vehicle history, Annexure –B – First information Report, Annexure C (colly) – e-mail, Annexure D – Table of contents Standard provisions of DSSA.
7. The complainant purchased one Ford Figo bearing Temporary No. HR-99-ACP-8723, Chassis No. MAJGXXMTKGHG66878, Engine NO. HG66878 from the opposite party No.1 authorized dealer M/s. V-Go Ford on 23.07.2018 vide invoice No. GST-197 for Rs.6,37,400/- vide Ex.C-1. From the beginning of its purchase, the above said vehicle had gone out of order and was not in working condition. Lodging of several complaints to opposite parties in this regard on 24.07.2018, 25.07.2018, 26.07.2018, 27.07.2018 , 28.7.2018, 29.07.2018, 30.07.2018 Ipso facto go to prove that the vehicle in question had a manufacturing defect which was not removed by the opposite parties. As such, there was deficiency in service on the part of the opposite parties. Hence complaint is allowed.
8. Opposite parties Nos.3 & 4, jointly & severally, are directed to replace the vehicle in question with a new one after taking the old vehicle and the complainant will bear the taxes and other expenses on the vehicle. Opposite parties Nos.3 & 4 are also directed to pay Rs.2200/- as compensation towards mental agony, harassment alongwith Rs.2200/- as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of order. In case of non compliance, opposite parties Nos.3 & 4 will liable to refund to the complainant the invoice amount of Rs.4,94,108.53 alongwith interest @ 6% p.a. from the date of filing of complainant till its realizaiton. Taxes will not be refunded to the complainant. Copy of this order be given to the parties free of costs and file be consigned to record room.
Announced on: 31.10.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
