Chandigarh

StateCommission

CC/257/2019

M/s Chaudhary Buildmart Pvt. Ltd. - Complainant(s)

Versus

M/s Volvo Auto India Ltd. - Opp.Party(s)

Sidhu Law Associates Anant Bir Singh Sidhu

24 Nov 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	257 of 2019
Date of Institution	:	20.11.20199
Date of Decision	:	24.11.20222

 

M/s Chaudhary Buildmart Pvt. Ltd., 404, 4^th Floor, KJ City Tower, Ashok Marg, C-Scheme, Jaipur, Rajasthan and having its Branch Office at 6^th Floor, CGR Mall, Sri Ganganagar, Rajasthan through its Director/ Authorized Signatory Sh. Adity Kumar. 

……Complainant

Versus

 

1. M/s Volvo Auto India Ltd., 6^th Floor, Park Centra, Sector 30, NH-8, Gurgaon – 122001, Haryana.
2. Ms Krishna Auto Sales, Business Block, Elante Mall, Industrial Area, Phase-1, Chandigarh.
3. M/s Morani Motocorp Ltd., F-2152, Industrial Area, Ramchandrapura, Near Purnima University, Sitapura Industrial Area, Jaipur – 302001, Rajasthan.

... Opposite Parties.

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   MRS. PADMA PANDEY, MEMBER

                   MR. RAJESH K. ARYA, MEMBER.

                   MR.PREETINDER SINGH, MEMBER

                  

Present:-     Sh. Jayendra Sevada, Advocate for the Complainant.

                   Sh. Ankush Chowdhary, Advocate for opposite party No.1.

                   Sh. Jagvir Sharma, Advocate for opposite party No.2.

                   Opposite Party No.3 exparte vide order dated 02.12.2020.

 

PER  RAJESH  K.  ARYA, MEMBER.

 

Facts of the case:

                    By filing this complaint seeking refund, the complainant is alleging manufacturing defect in the brand new VOLVO XC 90 Inscription Luxury car, which it purchased from Opposite party No.2 (Dealer) on 10.07.2016 vide Invoice, Annexure C-1, for Rs.81,60,800/- for personal use of its Director Sh. Aman Deep. The said vehicle was financed by Punjab and Sind Bank and duly insured with United India Insurance Company Ltd. vide Insurance Policy dated 20.08.2018, Annexure C-2. It was registered with Registration Authority, Sri Ganganagar on 20.07.2016 vide Registration No.RJ13UB0063, as per Registration Certificate, Annexure C-3. It has been averred that on umpteen number of times, the vehicle broke down, firstly on 06.04.2017, when it was repaired by opposite party No.3 (M/s Morani Motorcorp Ltd.) by charging Rs.38,876/- for spare parts and Rs.4,807/- as service charges. The car again developed faults on 03.05.2017. The same was repaired and total amount of Rs.15,293/- was charged from the complainant. Again on 05.12.2017, again the problem occurred and the vehicle was repaired against charges of Rs.41,345/-. On 16.04.2018, maintenance service of the vehicle was got done by the complainant against total charges of Rs.44,483/-. On 28.05.2018, the vehicle was reported for repairs and engine faults, which was repaired and total of Rs.94,172/- was charged vide Invoice, Annexure C-8. There was again breakdown in the vehicle, for which it was reported for repairs, which were done by changing Brake Pad Kits (Two) etc. against total charges of Rs.42,664/- vide invoice dated 19.07.2018, Annexure C-9. It has been averred that when vehicle run 100114 KMs, opposite party No.3 informed that the engine is to be replaced due to big issue with it. On 01.09.2018, the engine replacement was done without charging any money from the complainant as per Invoice, Annexure C-10. However, as averred, again on 14.09.2018, the vehicle was reported to opposite party No.3 for faults, which were rectified by charging Rs.8837/-, Annexure C-11. It has further been averred that after replacement of the vehicle, the car again broke on 24.10.2018 and this time, opposite party No.3 informed that it again required an engine change. Aggrieved with the condition of the vehicle, the complainant served legal notice dated 26.11.2018, Annexure C-13, upon the opposite parties and after much resistance, the engine of the car was again replaced on 20.03.2019, Annexure C-14 and vehicle was delivered back to the complainant after thorough checkup.

2]                It has further been averred that on 26.03.2019, the vehicle again broke down during the journey, which was informed to opposite party No.1 and this time, it was towed to opposite party No.1, when it was informed vide email dated 28.03.2019, Annexure C-15 that the drive shaft axle and suspension repairs are to be done, which would cost Rs.4 Lakhs approximately vide estimate, Annexure C-16. The complainant also wrote email dated 03.04.2019, Annexure C-17 to opposite party No.2 informing that since the defect occurred due to negligence on its part and it should be repaired entirely at the costs of opposite party No.1 but of no avail. It has further been stated that the now the car is with opposite party No.1 for undergoing repairs.

3]                Thus, alleging manufacturing defect in the vehicle, the complainant has sought refund of its price  besides compensation and legal costs etc.

Reply of opposite party No.1 – M/s Volvo Auto India Limited.

4]                Besides contesting the complaint on merits, opposite party No.1 has taken certain preliminary objection to the effect that this Commission has no territorial jurisdiction to entertain and try the complaint; that the complaint is time barred as cause of action started to accrue in the year 2016; that the complainant does not come under the ambit of definition of ‘consumer’ under Consumer Protection Act, 1986 (in short ‘C. P. Act 1986) and that the complaint being frivolous and vexatious is liable to be dismissed under Section 26 of C. P. Act, 1986.

5]                On merits of the case, it has been pleaded that the very first instance of alleged defect with regard to spare parts pertaining to brake pads because of normal wear and tear had come after 9 months of usage of the car when it had run for almost 60,000 Kms. It has further been pleaded that opposite party No.1 offers a warranty for manufacturing defects of the vehicle and this time, there was no free service and the complainant was mandated to pay for services. It has further been pleaded that the complainant, in order to confuse the facts has deliberately suppressed the nature of defect for each service that was to be provided on each occurrence and as such, the defect was not in a singular part and any part covered under warranty was duly replaced at no charge to the complainant. It has further been pleaded that the payments made towards spare parts and labour do not qualify under warranty and as such, the opposite party could not be forced to provide free services in perpetuity. It has further been pleaded that the complainant has deliberately suppressed the factum that the engine of the vehicle was replaced as a gesture of goodwill despite the fact that the vehicle was out of warranty at the time it was brought for checking.  It has further been pleaded that the allegation of manufacturing defect in the vehicle is implausible and appears to be an oblique move on part of the complainant to suppress material facts. Alleging no manufacturing defect in the vehicle or deficiency in rendering service on its part, opposite party No.1 prayed for dismissal of the complaint with costs.

Reply of opposite party No.2 – M/s Krishna Auto Sales.

6]                Apart from taking a preliminary objection with regard to the complaint being not maintainable under C.P.Act 1986 as the vehicle was being used by the complainant for commercial use and not for personal use of its Director; contesting the complaint on merits, it has been pleaded that there was warranty for two years from the date of purchase of the vehicle i.e. 10.07.2016, which ended up on 09.07.2018. It has further been pleaded that even otherwise also, the complainant was given extra benefit of warranty as it was not made available to a consumer/owner of the vehicle if the vehicle met with a major accident during the period of warranty. It has further been pleaded that the vehicle met with an accident in the month of June 2017 and it was repaired at the cost of Rs.17,74,535/-, which was given by the Insurance Company. It has further been pleaded that at the time of accident, the vehicle was run at a very high speed as its impact with the tree was so high that the tree came on the body of the vehicle after being broken due to force of the impact of the vehicle but the complainant Company was given the benefit of warranty as a good will gesture by the manufacturer (opposite party No.1). It has further been pleaded that vehicle met with accidents not only once, twice but more than three times i.e. in the month of June 2017, February 2018, May 2018 and August 2019, which shows that the vehicle was being driven in a very rash and negligent manner and that too at a very high speed. It has further been stated that twice the complainant did not opt for the insurance claim, which goes to show the negligent and rash driving in which the vehicle was being driven. Pleading no manufacturing defect in the vehicle or any deficiency in rendering service on its part, opposite party No.2 prayed for dismissal of the complaint with costs.

7]                Since none had put in appearance on behalf of opposite party No.3 (M/s Morani Motocorp Ltd.) despite due service, therefore, it was proceeded exparte vide order dated 02.12.2020.

Rejoinder

8]                The complainant filed rejoinder(s), wherein averments made in the complaint have been reiterated and those stated in the replies filed by opposite party No.1 and opposite party No.2 have been repudiated. It has specifically been denied by the complainant that the vehicle had met with any major accident or the repairs/breakdowns was result of negligent, rash, high speed driving by the driver.

9]                We have heard the Ld. Counsel for the parties and have gone through the material available on record and the written arguments very carefully.

Issue involved

10]              The only question, which arises before this Commission for consideration, is as to whether the allegations leveled by the complainant in its complaint to the effect that the vehicle in question is suffering from manufacturing defect was due to some inherent fault therein or on account of some other reason.

11]              In the first instance, we will discuss the issue as to whether the vehicle was suffering from any inherent manufacturing defect or not. It may be stated here that not even a single cogent and convincing evidence or any expert opinion has been placed on record by the complainant to establish that there was any inherent fault/defect in manufacturing of the vehicle in question. On the other hand, we are shocked when we peruse the record, which clearly shows that the vehicle in question met with major accidents as a result of which, the same had been taken to the workshop for repairs and replacement of various parts including main engine. Record further shows that after purchase of the vehicle on 10.07.2016, it was only after 9 months of its purchase that the complainant took its vehicle to opposite party No.3 in April 2017 i.e. 06.04.2017 when brake pads/disc were replaced, which is not a major defect and rather result of wear and tear of vehicle when it had run 50,928 Kms. Here the vehicle was being plied at an average of 5659 Kms per month or say 188 Kms per day. It was again reported to opposite party No.3 on 03.05.2017, the next month, when it had run 59,296 Kms, when again Brake pads front 2 wheels were replaced in addition to wheels calibrating including wheel balance and tyre pressure was done. Again on 05.12.2017, the vehicle was reported to opposite party No.3 on covering 79,896 Kms, for maintenance service, when again brake pads front 2 wheels were replaced besides other alignments and calibrations were done. Again periodic maintenance service was done on 16.04.2018, almost after 4 months, when the vehicle had run 94,099 Kms and this time, gasket, oil filter, multi filter and engine oil were replaced with wheel angles 4 wheels calibration including wear and tyre pressure was checked and wheel balancing was done besides some paint job.

12]              The jobs/maintenance services record discussed above clearly shows that the vehicle was being used extensively as it had run for almost 94,099 Kms in less than two years from the date of its purchase and at such an usage of the vehicle, the above wear and tear or replacement of parts is not a big thing.

13]              Though the complainant, in its rejoinder, has specifically denied the factum of the vehicle suffering from any major accident, but the record says otherwise. Bare perusal of Tax Invoice, Annexure C-8, dated 30.05.2018 transpires that the vehicle in question was reported to opposite party No.3 for accidental repairs at 100114 Kms, when its Glass Sealant and Windscreen were replaced besides body paint job. Not only above, further Tax Invoice dated 01.09.2018, Annexure C-10 (colly.) transpires that the vehicle had met with a major accident, consequent whereto, entire engine was replaced besides auxillary battery and Bleeder hose replacements. It can very well be inferred that what would have been the impact of the said accident, which was very high that the entire engine was damaged and replaced besides replacement of other numerous parts. It is also not out of place to mention here that the complainant had already claimed insurance because of major accident of the vehicle in question to the tune of Rs.2,25,600/- in August 2017 as is apparent from Annexures A-1 and A-2 and further claim of Rs.16,92,106/- against the Invoice Amount of Rs.17,74,535.17 was duly received by opposite party No.3 through NEFT, as is apparent from Annexure A-6, Customer Receipt dated 15.11.2018. Thus, it is not a case of manufacturing defect in the vehicle but a kind of a case, where the complainant is trying to dispose of its vehicle by concealing the material fact of its being suffered heavy accidents. Thus, an adverse inference is drawn against the complainant. The complainant has miserably failed to prove that the vehicle was suffering from any manufacturing defect and rather the complainant has deliberately concealed the factum of accidents of the vehicle in question. In Hyundai Motor India Limited Vs. Surbhi Gupta & 3 Ors.,  Revision Petition No.2854 of 2014 decided on 14.08.2014, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi has observed in Para 8, interalia, that “……had there been some inherent manufacturing defect in the vehicle it would not have been possible for the vehicle to run for about 48,689 kms for over a period of more than 3 ½ years……”. Similarly, in the instant case also, the vehicle had covered 100114 Kms when it was reported for accidental repairs on 30.05.2018. Further in General Motors India Pvt. Ltd. Vs. G. S. Fertilizers (P) Ltd. & Anr., First Appeal Nos.723  & 736 of 2006 decided on 07.02.2013,  the Hon’ble National Consumer Disputes Redressal Commission, New Delhi specifically observed that the complainant failed to produce any expert evidence, to indicate that there was any manufacturing defect in vehicle and whenever there was any problem with vehicle either, these were promptly attended to by the appellants – Even extensive use of vehicle would not have been possible if there had been any manufacturing defect. Further in Skoda Auto India P Ltd. & Ors. Vs. Bhawesh Narula, Revision Petition No.1717 of 2014 decided on 03.08.2015, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi has observed that in case of defect only in a part, at the most it could have been ordered for replacement of that part but there was no question for refund of price without any manufacturing defect. On the other hand, the judgment relied upon by the complainant in case Shailender Bhatnagar Vs. Hyundai Motors India Ltd., Complaint No.38 of 2018, decided on 07.10.2020 by State Consumer Disputes Redressal Commission, Delhi is of no help to the complainant being totally distinguishable on facts. Under these circumstances, the complainant in the instant case cannot be permitted to take benefit out of its own wrong. This all goes to show the negligent driving habits of the person driving the vehicle in question and further the vehicle being extensively used in such a short span, resulting into huge wear and tear and replacement of its entire engine with other important spare parts on account of accidential damage. The complainant cannot shift blame on to the opposite parties alleging manufacturing defect in the vehicle, when there is no such thing in the present case and rather, it is a case of concealment of true picture by the complainant from this Commission as regards the vehicle meeting out with major accidents, in order to take undue advantage from this Commission, which cannot be permitted in any case. Thus, the case in hand is a glaring example as to how the litigants play with the Courts. They indulge in 'forum hunting', conceal material facts and try to mislead. It is well settled that any litigant who approaches any judicial forum with un-clean hands and conceal the material facts, is not entitled to any relief in equity. It may be stated here that in the present case, by deliberately concealing the material facts regarding accidental damage to the vehicle, the complainant has made an attempt to pollute the stream of justice and touched the pure fountain of justice with tainted hands. Under similar circumstances, the Hon’ble Apex Court in Kishore Samrite vs State Of U.P. & Ors., Criminal Appeal No.1406 of 2012 decided on 18 October, 2012 has held in Para 29 inter alia that “……..(i) Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with ‘unclean hands’. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief. (ii) The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant. (iii) The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court. (iv) Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains. (v) A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final. (vi) The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs…..”

14]              Thus, it is not a case of manufacturing defect or deficiency in service or unfair trade practice on the part of the opposite parties but a case projecting pure concealment of material facts from this Commission. Therefore, we are not going into other objections raised by the opposite parties, when the complaint itself proved to be frivolous and vexatious being based on falsehood. To put an end to the tendency of filing frivolous and vexatious litigation, Section 26 was inserted in the Consumer Protection Act, 1986 which provides for a maximum penalty of Rs.10,000/- on complainant if its complaint is baseless. However, taking a lenient view, we are not imposing any cost on to the complainant in the instant case.

15]              In this view of the matter, the complaint is baseless and flagrant abuse of the process of law to harass the opposite parties. Complainant is taking disadvantage of provisions of the Consumer Protection Act. There is an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism. We think such a tendency should be curbed. As such, the complaint is liable to be dismissed under Section 26 of the Consumer Protection Act, 1986 being frivolous and vexatious.

16]              For the reasons recorded above, the complaint is dismissed being false and vexatious with no orders as to costs. All pending miscellaneous applications in this case also stand disposed of having become infructuous. 

1. Certified Copies of this order be sent to the parties, free of charge.
2.  

Pronounced.

24.11.2022.

 

(RAJ SHEKHAR ATTRI)

PRESIDENT

 

 

 

(PADMA PANDEY)

          MEMBER

 

 

 

(RAJESH K. ARYA)

MEMBER

 

 

 

(PREETINDER SINGH)

MEMBER

 

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