Delhi

StateCommission

CC/12/258

S.SUNCON REALTORS (P) LTD.& ANR. - Complainant(s)

Versus

NISSAN MOTOR CO. &ORS. - Opp.Party(s)

12 Apr 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :12.04.2019

Date of Decision : 22.04.2019

COMPLAINT NO.258/2012

In the matter of:

 

1. S. Suncon Realtors Pvt. Ltd.,

Through its Director

At 9 Adchini, 2^nd Floor,

Sri Aurbindo Marg,

New Delhi.

 

2. K.P.S. Bhandauria,

S/o. Late G.S. Bhandauria,

At 9 Adchini, 2^nd Floor,

Sri Aurbindo Marg,

New Delhi.                                                           ………Complainants

Versus

 

1. Nissan Motor Company,

Through Respondent no.2 and 4

1. Takashima, 1-Chome,

Nishi-Ku, Yokohama-shi,

•  
•  

 

2. Nissan Motors India Pvt. Ltd.,

Through its concerned official/ managing Director,

ASV Ramana Towers,

37%38 Venkatnarayana Road,

T.Nagar, Chennai-600017.

 

3. Pushpanjali Motors ltd.,

Through its concerned official/ Managing Director,

Having itsCorporate Office at

International Hotel Complex,

Nelson Mandela Marg,

Vasant Kunj, Phase-II,

New delhi-110070.

 

4. Nath Motors Pvt. Ltd.,

Through its concerned official/ Managing Director,

A-30, Mohan Cooperative Industrial Estate,

Mathura Road, new Delhi-110044.                          ……..Respondents

 

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The case of the complainant is that complainant no.1 is private limited company registered under Companies Act, complainant no.2 its Director and authorised by resolution to sign, verify and present the complaint. OP-1 is manufacturer of Nissan Exports Utility Vehicle (SUV). Op-3 and 4 are distributors and after sale service authorised agents of respondent no.1 and 2. OP-2 is Indian arm/ concern of OP-1. OP-1 and 2 advertised and showed its SUV Nissan X-trail in 2005 as one of the best and claimed that the same was very powerful, maintenance free, sturdy engine for Indian roads and conditions.
2. Complainant no.2 intended to purchase a high class SUV for his personal use being Director of complainant no.1. In the year 2008 Sales Officials  of OP-1 and 3 approached complainant no.2. Complainant no.2 called for  quotations. Complainant no1 purchased said vehicle for exclusive personal use of complainant no.2. Initially complainant no.2 paid Rs.3 lakhs to OP-3 and booked a car which was sold to him on 20.04.08 for Rs.19,90,000/-. The said vehicle was registered as no.DL3CAY5685. Complainants took Rs.16 lakhs approximately as loan from ICICI Bank which was rescheduled by Kotak Mahindra Pvt. Ltd. Complainants spent almost Rs.3 lakhs from personal account. They spent several lakhs of rupees on its  expenses which respondents took on the pretext of experimental repairs. Complainant no.2 spent Rs.1,79,736/- on said account, paid Rs.1,53,610/- as insurance from 2008 till 2013. He spent Rs.83,900/- on registration. He spent Rs.25,000/- on taxies during  the period when the vehicle was stuck off for repairs on numerous occasions. He had to pay hefty amount of interest i.e. Rs.5,43,190/-. After taking possession of the vehicle, complainant no.1 and 2 spent Rs.44,150/- toward insurance.
3. Within a month’s period of purchase, the vehicle started giving serious troubles/ problems as indicated by hazard signal (i.e. yellow light indication) and did not run as  explained by the Sales & Marketing team of the OPs. Details of fault detection and rectification, repairs are given in para-11 of the complaint. The same made it clear that the vehicle had serious manufacturing difficulties all over sales  in engine and in other parts. A very hefty amount of more than Rs.1 lakh was spent by the complainant. The details of job card/ invoice after two years are mentioned in para-14 of the complaint. In para 15 of the complainant details of visit mostly prior to visits mentioned in para-14 have been incorporated.
4. Complainant no.2 faced severe embarrassment in his business and social circle on various occasions. The same led to severe mental trauma, stress to him. Complainant no.2 sent emails dated 24.01.12, 17.01.12 and 13.12.11 but no action was taken. Air condition of the vehicle have been creating loud, whirring sound when put to start. The complainant has assessed amount of compensation for losses, mental injury, harassment, trauma, stress and damages to the tune of Rs.1 crore. However, the complaint has been filed for directing OPs to replace the vehicle with  brand new same  vehicle model without any extra charges alongwith amounts to be incurred on registration, insurance, pay the amount of present actual value of same new vehicle, pay Rs.20 lakhs as compensation for causing loss  of repudiation, social standing, mental stress, trauma, they have also sought directions to the OPs to pay insurance, registration charges, repair charges to the tune of Rs.9,85,436/-, interest @18% per annum on all monetary compensation and other reliefs which can be quantified in terms of money, litigation cost, exemplary punitive damages. In all they have   prayed for Rs.49,85,436/-.
5. OP-2 filed WS raising preliminary objections that no cause of action has been pleaded against said OP, complaint is barred by time in as much as the vehicle was purchased on 20.04.08, its warranty expired on 19.04.10 whereas the complaint have been filed on 20.07.12. The complainant is not a consumer inview of  recent decision of NC in FA No.723 and 736/2006 titled as General Motors India Pvt. Ltd. vs. G.S Fertilisers Pvt. Ltd decide on 07.02.13. The vehicle has locked 80,000 k.m. over 46 months from date of purchase till 03.03.12. Such mileage may convincingly repel and review of the contention of the complainant about subject vehicle being defect, inherently or otherwise. The quantum of damages claim stand immensely exaggerated. On metres the OP took some what similar differences. It denied that complainant spent Rs.44,150/- on insurance or paid interest of Rs,5,43,190/- or spent other amount on repairs.
6. Oil cooler assembly cools done engine oil. The same was found in damaged state when the vehicle was brought on the complaint of discharge of black smoke and consumption of engine oil on 24.08.11. The subject vehicle is not defective inherently  or otherwise.
7. OP-3 filed separate WS pleading that it is not dealer of OP-1 or 2 nor provide any after service. It merely acted as authorised dealer of OP-1 and ceased to be so on 01.02.10.
8. Complainants filed separate rejoinder to WS of OP-2 & 3. They filed affidavit of complainant no.2 in evidence.
9. On the other hand OP-2 filed affidavit of Ms. Reshma Ravindran, Manager legal o OP-1. It also filed affidavit of Shri Vivek Rajput, Field Quality Manager.
10. The complainant  has filed written arguments. OP-2 did not file any written arguments but filed two sets of copy of judgement on 12.04.19.
11. I have gone through the material on record and heard arguments. The counsel for complainant has relied upon decision of this Commission in Anant Raj Agencies Pvt. Ltd vs. Tata Engine and Locomotive Company Ltd. I (1996) CPJ 268 to make out that a vehicle purchased by a company for the use of his Director is covered by Consumer Protection Act. To the same effect is a subsequent judgement of NC in CC No.51/06 titled as Crompton Grieves Ltd. vs. Damlier Chrysler India decided by three member bench of NC on 08.07.16.
12. However the counsel for OP relied upon latest decision of NC in FA No.786/16 titled as M/s. RDS Project ltd. vs. Skoda Auto India Pvt. Ltd. and others decided on 18.03.19. The aforesaid decision of NC in Crompton Grieves Ltd. Supra has been considered. It is true that in the case cited by counsel for OP, there was no averment in the complaint that vehicle was for personal use of Director of the Company. The counsel for OP fairly considered that said averments have been made in the case in hand. However he submitted that omission to plead was not the only ground taken by NC to distinguish the earlier decision in Crompton Grieves Ltd. Rather the other reason was that complainant company had not discharged the onus of establishing that vehicle was for personal use (exclusively/ principally) of Director of the company.
13. Counsel for OP has relied upon yet another decision of NC in Suresh Singla vs. Jay Cee Auto Mobiles Pvt. Ltd. (2018) SCC online NCDRC 375. In para 6 of the judgement it has been held that Company acts/ speaks through resolution. The terms and conditions regarding salary and perks of the Director are decided by way of resolution of the company. In the given case, no evidence to the effect that complainant no.1, as per any resolution of the company, was entitled to a car has been brought on record. The car was purchased in the year 2010 in the name of company and was registered in the name of company. The appropriate and correct evidence to prove that the car was infact, being used by  Shri  Suresh Singal, would be the terms and conditions/ perks of the said Director and also the resolution before the date of incident whereby he has authorised to use the said car, which was not there. In those circumstance it was found that there was force in arguments put forth by counsel for the OP that evidence by way of Exbt. C-36 was after thought being after the date of incident to bring complainant within definition of consumer.
14. The present case squarely falls within ratio of law  laid down in  above case. Rather the present case is worst than cited case because here there is no subsequent resolution even to show that car was for use of the complainant no.2.
15. The counsel for complainant relied upon decision of NC in Hundai Motors India Ltd. vs. Affiliated  East West Press Pvt. Ltd. I (2008) CPJ 19. In para 3 of the decision it has been held that in order to be manufacturing defect, defect may not  be a major one. He also relied upon decision of this commission in CC no.116/08 titled as Viney Sagar Sehgal and another vs. Skoda India pvt. Ltd. decided on 01.12.11. In para 12 of the decision the contention of OP that expert report is must for proving manufacturing defect was turned down. Rather reliance was placed on decision of NC in Scooter India Ltd. vs. Madha Bananda  Mohanty and others II (2005) CPJ 136 that it is not always necessary for consumer to give expert testimony for proving a manufacturing defect.
16. Counsel for complainant also relied upon decision of this Commission in CC No.188/08 titled as Giraj Kishore Bansal vs. Nisshan Motors India Pvt. Ltd. decide don 25.03.09 to make out it is misconceived notion that unless and until the vehicle suffered from any manufacturing defect, though the onus is always upon the manufacturer to prove that it does not suffer for any manufacturing defect, the goods or the vehicle can not be declared as defective. This was so held in para 14.
17. The counsel for OP submitted that aforesaid decision has been set aside / modified by NC in FA No.250/09 titled as NisshanMotors India Pvt. Ltd. vs. Giraj Kishore Bansal  decided on 20.09.16.
18. Counsel for complainant relied upon decision of State Commission Thiruvanthapuram in CC No.21/2012 titled as Jaison Lukos vs. Nisshan Motors India Pvt. Ltd. decided on 26.08.14 to make out that where the vehicle has to be repaired repeatedly and defects can not be rectified, it amounts to deficiency of service and the case of manufacturing defect.
19. Again the counsel for OP submitted that aforesaid decision has been set aside by NC  in FA No.1290/14 titled as Nisshan Motors India Pvt. Ltd. vs. Jaison Lukos decided  on 04.10.17.
20. The counsel for the complainant wanted to get rid off the order of NC by submitting that the NC simply remanded the matter to State Commission to consider WS of the appellant and hear the matter on merits  by giving opportunity to all the parties of being heard.
21. I feel that what ever may be  the ground of setting aside the order of State Commission, the effect is that the said order goes. It is not fair for a counsel to cite decision  which has been modified or set aside by higher authority.
22. The counsel for OP drew my attention towards application dated 19.09.16 moved by complaisant for seeking permission to repair. The grand total of estimate at page 6 is Rs.2,87,219/- as MRP of the various parts and Rs.39,150/- as labour charges. The sum total of these two figures does not come to Rs.4,44,849/- mentioned in para 6 of the application. The same can be explained only when the figure of Rs.1,18,482/- mentioned at page 7 of the affidavit of RW Vivek Rajput is added thereto. It is  most unfair on the part of complainant to pick up figure from here and there and then total the same. The arguments appears to be convincing.
23. Counsel for the OP also submitted that if the vehicle had any manufacturing defect, it   could not have travelled 80,000 k.m. in four years which is undisputed fact by the complainant. That fact in itself is sufficient to demolish allegation of vehicle suffering from manufacturing defect or a major defect.
24. In Maruti Udyog vs. Hasmukh Laxmichand (2009) 3 CPJ 229 NC held that manufacturing defect is more than an oridnary defect which can be cured by replacing the defect. It is a fundamental basic defect which creeps while manufacturing machine. To prove such defect, opinion of expert is necessary. In the instant case the complainant has not filed opinion of any expert. Rather OP has filed affidavit of Shri Vivek Rajput, Field Quality Management which is in the nature of expert opinion.
25. In R. Bhaskar vs. DN Udani IV(2006) CPJ 257 NC held that whether vehicle had been in use for one year and five months and had run over 9808 k.m. , it is difficult to believe that the same suffered from manufacturing defect.
26. In Sukhvinder Singh vs. Classic Automobiles I (2013) CPJ 47 NC held that to prove manufacturing defect, report of expert is necessary. Burden of proof is on complainant. Similar view was taken by UT Commission Chandigarh in Kamalji Singh vs. Broad Way Auto Engg. III (2014) CPJ 2012.
27. In Ajit Chit Fund Pvt. Ltd. vs. Teleco I (2007) CPJ 204 and Swaraj Mazada vs. P.K. Chak Kapoor II (2005) CPJ 72 NC held that expert opinion is must for proving manufacturing defect.
28. Perusal of para 11 of the complaint shows that bill no.513 dated 19.11.08 was for replacement of filter assembly oil, bill no.935 dated 28.03.09 was again for replacing filter assembly oil. Same is the position of bill no.247 dated 08.06.09. bill no.748 dated 07.10.09 is for replacement of belt Compressor. Bill no.897dated 17.11.09 is for replacement of disk assembly clutch. Bill no.153 dated 20.05.08 & invoice no.2367 dated 31.01.11 are blank with no details of work. Invoice no  276 and 2419 dated 19.04.11 and 30.0811 are for replacement of coolant. Order no.3640 dated 04.11.11 is for check up of oil consumption coolant splash guard facing and black more. Repair order no4497 dated 12.12.11 is for check in engine/ check engine oil leakage. All these are petty repair which are normal wear and tear.
29. From the above discussion I have no hesitation in holding that the complaint is baseless. The same is dismissed.
30. Copy of the order be sent to both the parties free of cost.
31. File be consigned to record room.

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)