Date of Filing: 12.09.2013 Date of Final Order: 31.10.2014
The simple version of this complainant that enumerated in the complaint is that the complainant Ayajuddin Miya intended to purchased a Maruti Omni E MPI STD BS-IV Van from the O.P. No.1 i.e. M/S. Beekay Auto Pvt. Ltd., Matigara, Siliguri for personal use but because of paucity of fund the complainant approached to the Proforma O.P. No.4 i.e. Branch Manager of the Mahindra & Mahindra Financial Service Ltd., Cooch Behar Branch through their local representative for financial assistance. After completion of all formalities the Proforma O.P. No.4 was agree to disburse the amount of Rs.2,73,793/- to the complainant for purchasing the said vehicle. On 27-12-2012 the O.P. No.1 delivered the said car i.e. Maruti Omni Van under Chassis No.MA3EVB11301424054, Engine No.F8BIN4574911, with this assurance that they will render proper service towards the complainant and the said vehicle was duly registered bearing No.WB-64/G-7412 by the Registering Authority, Cooch Behar on 01-01-2013 and issued a Registration Certificate. The O.P. No.1 also issued the Tax/Vehicles & Charges Invoice, Delivery Chalan & Sale Certificate. The said vehicle was duly insured with the Proforma O.P. No.5 i.e. ICICI Lombard General Insurance Co. Ltd. for the period of 1 year w.e.f. 28-12-2012 to midnight of 27-12-2013 and the warranty period of the said car was 24 months or 40,000k.m from the date of purchase thus, the car was in warranty period.
After 2 months from the date of purchasing the said car of the complainant realized troubles of Mobil/Engine Oil chamber due to defect of the engine of the car short ply of the car the mobil/engine oil chamber became dry and the car was facing troubles due to heat engine thus, after plying the car of 935k.m. the complainant took his car to the O.P. No.2 i.e. M/S. Prova Automobiles, A Maruti Authorised Service Station, Cooch Behar on 29-01-2013 for the 1st free inspection and it appears from the inspection coupon issued by the O.P. No.2 that Engine oil & Oil filter was replaced and again it was replaced at the time of the 3rd free inspection dated 22-05-2013 after 9363k.m. plying of the said car.
Besides, the said car was placed to the O.P. No.2 for defective engine, who is the authorized Show Room of O.P. No.1 on 28-12-2012, 02-03-2013, 25-05-2013 & 12-07-2013 respectively in each date it was reported by the O.P. No.2 that the car was trouble of mobil chamber due to defective engine of the said car and the O.P. No.2 being failed to solve the said problem and informed to the complainant that the said car to place to the O.P. No.1. Accordingly the complainant do the same and kept his car for 15 days under the O.P. No.1 for remove the defect of mobil chamber of the said car. The O.P. No.1 tried to remove the said defect by their expert engineers but they also failed to remove the defect and handed over the car to the complainant. On the basis of oral complaint of the complainant, the O.P. No.1 informed by sending a letter on 15-05-2013 that they were agree to solve the problem within 2 months but the O.P. No.1 did not yet any step to solve the problem of the said car. Now the car was in garage and it is not in condition for smooth running due to problem of heat engine, whereas, there was valid warranty period for two years from the date of purchase of the said car and the said defects were arisen within the warranty period, so the complainant is entitled to get this benefit but the O.P. No.1 did not take any proper step to remove the said defect of the car within the warranty period.
It has been alleged by the complainant that due to such manufacturing & mechanical defects and act and conduct of the O.Ps by adopting their unfair trade practice and deficiency in service the complainant suffered from mental pain, agony and unnecessary harassments. The complainant also did not ply the said vehicle properly. That due to such activities of the O.Ps and finding no other alternatives the complainant files this complaint before this Forum for redress of all disputes and further prays for relief(s) as enumerated in the prayer portion of the complaint.
Hence, the complainant filed the instant case No. DF-106/2013 with enclosed some Xerox copy of documents together with I.P.Os. of Rs.200/- before this Forum for redress of the dispute and prayed for direction to the O.Ps to (1) Refund of value of the car i.e. Rs.2,73,793/- or replace the defective car by a new one of the same model, (2) Rs.1,00,000/- as compensation for deficiency in service & unfair trade practice against O.P. Nos.1, 2 & 3, (3) Rs.50,000/- for mental pain, agony & unnecessary harassment, (4) Rs.20,000/- towards litigation cost, besides other relief(s) as the Forum deem fit, as per law & equity.
O.P. No.1, Beekay Auto Pvt. Ltd. has contested the case by filing W/V denying all material allegation of the complaint contending inter alia the case is not maintainable and bad for non-joinder and mis-joinder of party.
It is the specific case of the O.P. No.1 that the complainant has used his vehicle for commercial purpose and not for personal purpose and used extensively for commercial purpose. It is the further case of the O.P. No.1 that it is not possible that the vehicle facing trouble of mobil/engine oil chamber after 2 months from the date of purchase as the same was in good condition till 27-05-2012 after 3rd free inspection.
It is also the specific case of the O.P. No.1 that according to the complainant on 22-05-2013 the said vehicle plied 9363k.m., if engine has such trouble, how said vehicle ran such distance.
It is the next case of the O.P. No.1 that on 15-05-2013 the complainant came to their office and at his request sale executive has issued an assurance letter though he had no knowledge about technical matter. In the said letter there was clear mention that the O.P. No.1 is able to solve the problem within 2 months if the complainant bring the vehicle to their workshop but he never visit the O.P. No.1 rather visit O.P. No.2 for ill intension to extract money.
It is the next case of the O.P. No.1 that actually the complainant has never taken any steps to get remove defect of the vehicle. Even by sending Reg. letter dated 28-08-2013 he was requested to visit their workshop but he did not visit their workshop.
Ultimately, the O.P. No.1 prayed for dismissal of the case.
O.P. No.2, M/s. Prova Automobile has also contested the case by filing W/V denying all material allegation of the complaint.
It is the specific case of the O.P. No.2 that at the time of 1st & 3rd free service, the O.P. No.2 has changed engine oil and oil filter of the vehicle and on 12-07-2013 engine oil was changed as per request of the complainant.
It is the further case of the O.P. No.2 that they never reported that the vehicle was facing trouble of mobil chamber due to defective engine of the vehicle and according to their opinion there was no problem in engine.
It is the next case of the O.P. No.2 that according to Maruti Suzuki India Ltd. warranty policy, to obtain warranty service the complete vehicle must be presented at the owner’s expenses to any Authorised Maruti Suzuki dealer and O.P. No.2 is not authorized to undertake warranty jobs. Customers are requested to approach only Maruti Suzuki Authorised Dealer/Service Master/Maruti Service Zone for warranty jobs.
O.P. No.3, Maruti Suzuki India Ltd. Has also contested the case by filing W/V denying all material allegation of the complaint.
It is the specific case of the O.P. No.3 that the case is bad for defect of parties and O.P. No.3 is not necessary or Proforma Party to the complaint. The relation between the O.P. No.3 and the O.P. No.1 is that of principal to principal basis only as per dealership agreement executed between the O.P. No.1 & 3 and the O.P. No.3 was not involved in this transaction of sale of the vehicle to individual customers. The complainant entered into an independent agreement contract with the O.P. No.1 to purchase vehicle in question to which O.P. No.2 was not privy.
It is the further case of the O.P. No.3 that the complainant admittedly brought the vehicle in question for business/commercial purpose. So, the complainant cannot be allowed to raise any claim against the O.P. No.3.
It is the further case of the O.P. No.3 that there is/was no manufacturing defect in vehicle in question or engine of the same and the complainant himself assessed alleged problem but he is neither qualified nor have any expertise to comment. More so, if there were many defects in the same then the vehicle could not plied huge mileage within 6 months and practically the performance of the vehicle was found as per set standers and defect free.
It is the further case of the O.P. No.3 that warranty issued by the O.Ps are not absolute and is subject to certain terms, condition and limitation. In the present case the complainant is quite negligent and careless in proper driving and maintenance of the vehicle and failed to abide terms and condition of warranty and violated terms and condition of warranty.
Lastly, the O.P. No.3 submitted there is/was no deficiency in service on the part of the O.P. No.3 and the case is liable to be dismissed with costs.
O.P. No.4, Mohindra Finance has not filed any W/V and not been contesting the case.
O.P. No.5, ICICI Lombard General Insurance Co. Ltd. has also contested the case by filing W/V denying all allegation of the complaint.
It is the specific case of the O.P. No.5 that the O.P. No.5 has been wrongly impleaded in this case and has nothing to do with instant Insurance Coverage as per petitioner claim.
It is the case of the O.P. No.5 that the case is bad for mis-joinder of party and name of the O.P. No.5 is to be expunged for interest of justice and equity.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant is a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service as alleged by the Complainants and are they liable in any way?
- Whether the Complainants are entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire Xeroxed documents in the record also heard the argument of the agent of the Complainant and O.P. No.1,2,3&5 in full.
Point No.1.
Evidently the complainant has purchased a Maruti Omni Van from the O.P. No.1, at a price of Rs.2,73,793/- after getting financial assistance from O.P. No.4.
It is the case of the O.P. No.1 & 3 that the complainant used the vehicle in question for commercial purpose and not for personal purpose and used the same for extensively commercial purpose. So the complainant is not consumer u/s 2(d) of the Consumer Protection Act, 1986 and the case is liable to be dismissed.
During argument Ld. Agent/Advocate of the O.P. No.3 submitted that evidently in between 27-12-2012 to 12-07-2013 i.e. about 6 months said car ran 11,920k.m. i.e. about 60k.m. per day. Said huge ran of the car goes show that the car was used for hire/commercial purpose.
But we think that only on the basis of running of the car 60k.m./day it cannot seem that said car was used for commercial purpose, when O.Ps failed to show any document in support of their claim.
So, we come to the conclusion that the complainant is a customer under the O.Ps as relation between them has been established.
Point No.2.
We like to mention that on 11-11-2013 the O.P. No.1, M/S. Beekay Auto Pvt. Ltd. has filed an application challenging territorial jurisdiction of this Forum.
By Order No.8 dated 27-01-2014 this Forum came to the finding that this Forum has territorial jurisdiction to decide this case and rejected the application of O.P. No.1. No appeal/revision has been preferred against said order. So we have no other alternative but to hold this Forum has every jurisdiction to try this case.
Point No. 3 & 4.
It is the case of the complainant Ayajuddin Miya that he purchased a Maruti Omni EMPI STD BS-IV Van from the O.P. No.1, M/S. Beekay Auto Pvt. Ltd. at a price of Rs.2,73,793/- on 27-12-2012. ‘Annexure-1’ i.e. Tax/Vehicle & Charge Invoice dated 27-12-2012, ‘Annexure-2’ i.e. Delivery Challan and ‘Annexure-3’ i.e. Sale certificate reveals that the complainant purchased said Maruti Omni car at a price of Rs.2,73,793/- from the O.P. No.1.
It is the case of the complainant that after 2 months from the date of purchase the said car of the complainant realized troubles of mobil/engine oil chamber due to defect of the engine of the car and even short ply of the car the mobil/engine oil chamber became dry and car was facing troubles due to heat engine. After plying of 935k.m. the car was brought to the O.P. No.2 for 1st free service and the car was again taken to there on 27-05-2013 for 3rd free service.
In the present case warranty of the car in question for 2 years from 27-12-2012 to 26-12-2014.
It is the further case of the complainant that on 28-12-2012, 02-03-2013, 25-05-2013 & 12-07-2013 the car was placed to the O.P. No.2 for defective engine of the car within warranty period but the O.P. No.2 being failed to solve the problem and asked to place the car to the O.P. No.1.
‘Annexure-7, 7-A, 8 & 9’ i.e. Tax Cash Memo’s show that said car was placed to the O.P. No.2 for service.
‘Annexure-7’ i.e. Cash Memo dated 27-05-2013 reveals that engine oil shortage, engine oil change and replace.
‘Annexure-7-A’ i.e. Cash Memo dated 02-05-2013 shows that engine oil shortage.
‘Annexure-8’ i.e. Cash Memo dated 25-05-2013 shows that engine oil and filter were changed.
‘Annexure-9’ i.e. Cash Memo dated 12-07-2013 shows that engine oil and filter replaced.
It is the definite case of the O.P. No.1 & 3 that there is/was no manufacturing defect in the vehicle and engine of the said vehicle was found as per set standers and defect free.
But ‘Annexure-2 & 2-A’ are copy of the job cards submitted by the O.P. No.1. ‘Annexure-2’ shows that “Fuel Level Shortage” of the vehicle. ‘Annexure-2-A’ shows that engine oil consumption high.
‘Annexure-9’ of the O.P. No.1 is letter dated 15-05-2013 issued by the O.P. No.1 to the complainant stating that there was some engine problem in the car in question and they are able to solve the problem within 2 months.
O.P. No.1, in his evidence stated that said assurance letter dated 15-05-2013 has been issued by Sale Executive though he had no knowledge about technical matter.
But we think the O.P. No.1 cannot deny assurance given in the said letter by his own officer.
So, in view of facts and circumstances stated it can be safely concluded that the complainant has been able to prove that there was some defect in the engine of the vehicle supplied to him by O.P. No.1.
Evidently warranty has been issued in respect of the car in question (Annexure-R 3/4 of the O.P. No.3) for 24 months or 40,000k.m. (which occurs first) from the date of delivery.
It is the case of the O.P. No.3 that warranty issued by the O.Ps are not absolute and is subject to certain terms, condition and limitation and in the present case the complainant is quite negligent and careless in proper driving and maintenance of the vehicle and failed to abide terms and condition of warranty and violated terms and condition of warranty.
But there is nothing to show by the O.P. No.3 that actually said car was improperly driven and the complainant neglected to maintain the same properly and violated terms and condition of warranty issued by Maruti Suzuki Company.
It is also the case of the O.P. No.1 that when they came to know about trouble of the vehicle they informed in writing to the complainant to bring the car to the workshop of the O.P. No.1 for repair.
During hearing Ld. Agent/Advocate of the O.P. No.1 drew by attention to clause 6 of the warranty, which runs thus, to obtain warranty service, the complete vehicle must be presented at the owner’s expenses to any authorized Maruti Suzuki Dealer and submitted that inspite of Notice dated 27-08-2013 to the complainant (Annexure-12), the complainant did not produce the vehicle in question to the O.P. No.1 for repair.
We find that ‘Annexure-12’ is copy of Notice to the complainant and ‘Annexure-12-A’ is Registration slip. But the O.P. No.3 did not submit any report of Postal Department to show that actually said Notice was duly served upon the complainant.
It is the case of the O.P. No.3 that in the present case no step was taken to examine the vehicle by independent expert like mechanical/automobile engineer to ascertain the defect of the vehicle. Rather he himself assessed alleged problem but he is neither qualified nor have any expertise to comment.
In support of the case, the O.P. No.3 Ld. Agent/Advocate of the O.P. No.3 submitted a ruling reported (II) 2013 CPL 72(NC) where Hon’ble National Commission dismissed the claim of compensation of the complainant for manufacturing defect holding that the complainant has not been able to produce any evidence including that an expert that there was manufacturing defect in the vehicle.
But we find that in an another ruling reported in 2013(2) CPR 595(NC) where Hon’ble National Commission pleased to hold that where in a vehicle almost every part of the same had some problem including engine, this is a case of resipsa locquitur where evidence in form of opinion of technical expert is not required to prove the case.
During hearing Ld. Agent/Advocate for the complainant submitted a ruling reported in (II) 2009-146(NC) where defect of the vehicle was rectified by the dealer but recurrence of problem continued. The complaint was dismissed by District Forum for absence of expert evidence. But Hon’ble State Commission on appeal allowed the case and Hon’ble National Commission upheld that order of Hon’ble State Commission observing that the matter ought to have been referred to automobile expert. District Forum failed to do so, held it against complainant and error not rectified by State Commission, but problem of vehicle remained unsolved after several round of servicing proved.
He cited a ruling reported in (I) 2009 CPJ 80 (NC) where the vehicle found defective immediately after purchase Hon’ble National Commission pleased to hold that dealer having received amount undertaken to do free service and rectify defects during warranty, cannot escape liability towards manufacturing defect found in the vehicle.
He cited another ruling reported in (II) 2009 CPJ 249 Punjub State Commission where vehicle was purchased on 02-01-2006 and vehicle needed major repairs and expenditure of Rs.2.20 lacs for repairs within warranty period. District Forum allowed the case and Hon’ble State Commission upheld said order.
During hearing Ld. Agent/Advocate for the O.P. No.1 submitted two rulings reported in (I) 1994 CPJ 165(NC) & (II) 2009 CPJ 380(NC) where the vehicle owner never brought the vehicle to the dealer and the case was dismissed on that ground. But in present case vehicle was brought to the dealer on several occasions. So, said rulings are not applicable in this case.
He cited two other rulings reported in (IV) 2008 CPJ 167(NC) & (II) 2012 CPJ 529(NC) where the complaints were dismissed on the ground that if there was defect how can vehicle ran 32,000k.m. and 60,000k.m. respectively. But here vehicle runs just 11,920k.m. so said rulings are not applicable.
He cited another rulings reported in (IV) 2008 CPJ 47(MP) where engine ceased and repaired problem developed there was replaced free of costs, manufacturing defect was not proved. Hon’ble State Commission pleased to dismiss the case. We think this ruling is not applicable in this case.
He cited another ruling reported in (III) 2007 395, Chandigarh where, engine of the vehicle was seized due to negligence of the complainant and as such no relief was granted but in the present case negligence of the complainant has not been proved. So, said ruling is not applicable.
It is the definite case of the O.P. No.3 that the relation between the O.P. No.3 and the O.P. No.1 is that of principal to principal basis only as per dealership agreement executed between the O.P. No.1 & 3 and the O.P. No.3 was not involved in this transaction of sale of the vehicle to individual customers. The complainant entered into an independent agreement contract with the O.P. No.1 to purchase vehicle in question to which O.P. No.3 was not privy. So the O.P. No.3 is not necessary party to this case and the case is to be dismissed against him with heavy costs.
In support of his contention he cited a ruling reported in 1993 (I) CPR 491(Kerala). But we find that in said ruling after cancellation of booking of car the Dealer issued two cheques, which were dishonoured and in that situation Hon’ble State commission pleased to hold that manufacturer was not a party to the said transaction. But in this case being manufacturer, O.P. No.3 cannot deny his liability regarding fault of the car manufactured by him.
Accordingly, we constrained to hold that the O.P. No.3 cannot avoid his liability and ruling cited above is not applicable in this case.
We find that in another ruling reported in 2013(1) CPR 117(WB) where vehicle was sent to service centre for necessary repair or removal of the defect and vehicle ran 38,039k.m. on 13-09-2007, Hon’ble State Commission pleased to hold that we are of the considered view that it would not be proper to order for replacement of the chassis or to return the total purchase amount of the chassis. But the fact remains that the complainant had to take the vehicle several times to the service centre for repair and having regard to the sufferings of the complainant we are of the considered view that it would meet the ends of justice if the amount of Rs.75,000/- is awarded as compensation and Rs.5,000/- as litigation cost.
In the present case vehicle in question was purchased on 27-12-2012 i.e. about 2 years back and so ran much.
However, we find that there was deficiency in service on the part of the O.P. No.1, 2 & 3 as they did not take effective steps for proper repair of the vehicle in question.
In this juncture relying upon ruling cited above passed by our Hon’ble State Commission, we think end of justice would be meted up if the amount of Rs.90,000/- is awarded as compensation and Rs.10,000/- as litigation costs against O.P. Nos.1, 2 & 3, and the case is dismissed against the O.P. Nos.4 &5 as there is no case against them.
Thus the case is succeeds in part.
ORDER
Hence, it is ordered that,
The DF Case No.106/2013 is allowed in part on contest against O.P. Nos.1 to 3 and dismissed on ex-parte against the O.P. No.4 and on contest against O.P. No.5 with litigation costs of Rs.10,000/- payable by O.P. No.1, 2 & 3 jointly and/or severally to the complainant, Ayajuddin Miya.
The case is dismissed against O.P. No.4 & 5.
The Opposite Party No.1 to 3 are also directed to pay jointly and/or severally Rs.90,000/- as compensation to the complainant for his deficiency in service. The ordered amount pay to the Complainant directly to the concerned party within 45 days failure of which the Opposite Parties jointly and/or severally shall pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.
Let plain copy of this Final Order be supplied, free of cost, to the concerned party/Ld. Advocate by hand/be sent under Registered Post with A/D forthwith for information and necessary action, as per Rules.
