Case No.CC/569/2018

  Date of Institution: 07.12.2018

    Order Reserved on: 29.07.2024

           Date of Order: 25.10.2024      

IN THE MATTER OF:

Sh. Ganesh Pratap Singh

S/o Sh. Brahma Dayal Singh,

R/o RZ-50, 404/405, Gali No.1,

East Sagarpur, South West Delhi,

Delhi – 110046.

          …..Complainant

Versus

1. Nissan Motor India Pvt. Ltd.

5^th Floor, ASV Ramana Tower,

52, Venkatnarayana Road,

T-Nagar, Chennai  - 600017 (Tamil Nadu).

2. Datsun Head Office (Marketing & Sells)

Nissan Motor India Pvt. Ltd.,

5^th Floor, Orchid Business Park,

Sohna Road, Sector – 48,

Gurgaon – 122014.

3. MalwaCarzone Pvt. Ltd. (Dealer)

NH-1, 118/1, K.M. Stone,

G.T. Road, Karnal,

Haryana – 132001.

4. Sparsh Nissan

(A unit of SparshAutotech Pvt. Ltd.)

32/8, Shanti Garden, Matiala Industrial Area,

Near DPS School, Dwarka,

New Delhi – 110059.

..…Opposite Parties

O R D E R

DR. HARSHALI KAUR, MEMBER

1. The Complainant purchased a car from OP-3 on 03.05.2015 manufactured by OP-1. The Complainant’s car, bearing no. DL-11CA-5633, engine no. DO51296, chassis no. MDHHSNA36F2012611 for the total amount of Rs.13,08,882/-. OP-3 issued an invoice no. MCSPL/KNL/47/2015-16 dated 03.05.2015 towards the sale of the car.
2. The Complainant alleges that from the very beginning of purchasing the car, some technical defect, like faulty air conditioning, kept arising in his vehicle. He immediately contacted OP-3,the seller, who advised him to approach the authorised service centre of OP-1, i.e. OP-4. The Complainant handed over his car to OP-4, who repaired it and assured him there would be no further technical difficulties while delivering the vehicle to the Complainant after two days. The Complainant had to visit OP-4 for the free service and, at the time, pointed out various defects in the car to OP-4.
3. The Complainant alleges that from 14.07.2016 to 18.09.2018, the Complainant had to visit the service centres of OP-1 & OP-2 more than 20 times for multiple defects in his car, which was under warranty till 2018 but could not find a satisfactory resolution to his grievance.
4. On 14.07.2016, the OP-4 raised a bill/receipt marking the defects as front shockersspung problem, break noise, air conditioning less and horn not working. On 27.11.2016, the same defect with the air conditioner was again noted.It was mentioned once again on 20.04.2017, alongwith other defects. The Complainant visited OP-4 and also sent emails to OP-1 & OP-2 regarding the issue to no avail. The air-conditioning of his vehicle was never satisfactorily repaired. On 07.07.2017, the cooling water was found to be stored inside the car.When the Complainant took his vehicleto remove the air-conditioned defect, on 07.10.2017, the engine started leaking, and the Complainant had to pay Rs.31950/- to rectify the defect. On 23.03.2018, his car engine suddenly stopped, and smoke started coming out from the engine.The Complainant had to tow the car to OP-4, who raised the bill of Rs.9056/- to repair the issues in the vehicle.
5. Aggrieved, the Complainant sent a legal notice on 06.06.2018 to the OPs, after which officials of OP-1 & 2 called upon the Complainant but no positive action was taken by them. Problems ofa similar nature in his car kept arising, and the Complainant was forced to pay the bill of Rs.58,398/- on 31.07.2018 and Rs.13,683/- on 18.09.2018.
6. As a last recourse, the Complainant filed the present complaint before this Forum on 07.12.2018, alleging deficiency in service and unfair trade practices under Section 12 of the Consumer Protection Act, 1986. The Complainant has prayed for directions for the OPs to refund the cost of the car in question, i.e. Rs.13,38,000/-,  Rs.1,62,409/- incurred by the Complainant on repairing the vehicle and paying for the taxi fare, interest @ 18% p.a. on the above-claimed amount, Rs.1,00,000/- towards compensation towards mental agony and harassment and Rs.50,000/- towards litigation cost.
7. Notice was issued to the OPs 1 to 4. When none appeared for OP-1, 2 & 4, they proceeded ex-parte as the Complainant filed proof of adequate service vide order dated 12.03.2019. 
8. OP-3, the dealer from whom the Complainant purchased the car in question, filed the reply stating therein that the present complaint was not maintainable qua OP-3 as the Complainant is alleging manufacturing defect in the vehicle for which OP-1,2 & 4 are liable, and OP-3 has only sold the car to the Complainant. Hence, no liabilities can be attributed to OP-3 for any deficiency found in the present case.
9. The Complainant filed his rejoinder and affidavit in evidence, reiterating the averments stated in the complaint. OP-3 filed the affidavit of Sh. Ashwani Sharma, Manager HR and Admin. Of OP-3, who echoed the statements made by OP-3 in their reply. OP-1, 2 & 4 are ex-parte.
10. At this stage, the Complainant filed an application seeking expert opinion for the car in question. His application was allowed, and this Commission sought an expert report from G.B.Pant Institute of Technology at Okhla Phase-3 Road.Consequently, a report was received from G.B. Pant Institute of Technology at Okhla Phase-3 Road, dated 04.01.2021 wherein Sh. Manoj Kumar Mishra, Sr. Lecturer, I/c Automobile Engineer, submitted his inspection report/technical opinion on the Complainant’s car. The following technical observations/opinions were made:

1. The vehicle Nissan Terrano bearing Registration number. – DL-11-CA 5633, inspected after 135050 (odometer reading) of runs.
2. Inconsistent pick-up observed in the vehicle during test drive
3. Shudder observed during changing of gear.
4. Noisy clutch and gearbox.
5. Gear grinding observed while changing gears.
6. Excessive fatigue observed during clutch operation.
7. Excessive backlash observed in transmission during changing of gear
8. Excessive engine noise and vibrations observed during inspection of the vehicle.
9. Vehicle history report shows that the said vehicle was having repeated problem since beginning with poor AC cooling, overheating, wheel bearing noise, noisy engine hard clutch, suspension system elements, engine timing elements, leakage of water from dash board to vehicle floor, change of clutch plate assembly, Starter motor, wheel alignment and engine timing kit and they are replaced/rectified frequently.

11. Thereafter, the Complainant and OPs filed their written arguments, and we heard the final oral arguments from Ld. Counsels of the Complainant and OP-1 & 2. None appeared for OP-3 on the date fixed for final arguments; hence liberty was given to OP-3 to address arguments within 7 working days. OP-4 is ex-parte. 

12. We have carefully gone through the facts and circumstances of the present complaint and have also perused the documents filed by the contesting parties. We find that the Complainant purchased a NISSAN model Terrano car from OP-3, manufactured by OP-1. The Complainant alleged that the car sold to him had a manufacturing defect like an AC issue and other defects which were not rectified and repaired by the OPs despite the Complainant taking the car to the authorised service centre of OP-1, i.e. OP-4 several times during the warranty of the car. The Complainant had to pay an additional sum to get the defects rectified as stated by him in his complaint.

13. The Complainant has placed on record the invoice reflecting the amount of Rs.13,08,882/- for the car in question dated 03.05.2015 on page no. 15 & 16 of his complaint. Page no. 17 is the copy of theextended warranty the Complainant took on 24.01.2016, paying a sum of Rs.12,780/-. A bare perusal of the job sheet annexed alongwith the complaint from page no. 20 dated 14.07.2016 reflects that the Complainant took his car to OP-4 for the repair of the front shocker sprung, brake noise, AC cooling less, and horn not working.

14. Thereafter, other issues like suspension check, front tyer play, engine compartment side noise and antenna issues, the Complainant again requested OP-4 to check the cooling of AC on 27.11.2016 (page 21 of complaint), i.e. only after 4 months. The Complainant again visited OP-4 to get his car checked on 30.04.2017,07.07.2017, 04.10.2017, 05.02.2018, and 23.03.2018 for getting the AC in his car checked,besides other issues purchasing his car more of a liability than ease of travel. The Complainant has annexed the copy of the job card with the defects mentioned on page no. 20 to page no. 30.

15. Fed up with the inability of the OPs to resolve his grievance and finding that his newly purchased car had some manufacturing defect, the Complainant filed the present complaint before this Forum.
16.  OP-3, the dealer from which the Complainant purchased the car on 03.05.2015, filed a reply denying any liability as the Complainant was alleging a manufacturing defect in his car, and it was OP-1, 2 & 4 who were the manufacturer and responsible for the sales and servicing of the Complainant’s defective vehicle. OP-3 stated that OP-3 was only the showroom from where the Complainant took the delivery of his car, and thus, no deficiency of service could be attributed to OP-3 as the defects in the vehicle were first found on 14.07.2016, i.e. after more than one year of purchaseon 03.05.2015.
17. OPs 1 , 2 & 4 are ex-parte. 
18. In our view, the Complainant was forced to take his car repeatedly for the same defect of the ‘AC not working’ to OP-4, the authorised service centre of OP-1. The Complainant has placed sufficient documentary evidence on record in the form of copies of the job cards issued by OP-4 to show that the OPs could not rectify the defect of a non-functional AC in the Complainant’s car even though the Complainant kept complaining about the defect among other issues he was facing in his car.
19. The expert report dated 04.01.2021 also corroborated that the AC cooling was poor even after OP-4 had rectified the defect several times. As mentioned above, on the direction of this Commission, the authorised engineer at the G.B. Pant Institute of Technology inspected the Complainant’s car and gave his technical opinion via a letter sent to the Forum,in which it was clarified that several inconsistencies were found in the Complainant’s vehicle Nissan Terrano bearing registration no. DL-11-CA-5633.
20. According to the opinion of the technical engineer, Sh. Manoj Kumar Mishra who found that the pick-up of the Complainant’s vehicle was inconsistent during the test drive. The car was shuddering during the gear change. The clutch and gearbox were noisy, with the gear grinding while changing gearsas observed by him while on the test drive of the car in question. He also observed excessive fatigue during clutch operation and substantial backlash during transmission during a gear change. The engine noise and vibration during the inspection were noticeably high for him to have mentioned the same in his report. The technical engineer also checked the vehicle history report, showing that there were repeated problems from the beginningwith poor AC cooling, overheating, wheel bearing noise, noisy engine hard clutch, suspension system elements, engine timing elements, leakage of water from dash board to vehicle floor. He further observed that the engine timing kit wheel alignment, starter motor and clutch plate assembly had been replaced/rectifiedfrequently. 
21. Hence, there is no doubt in our minds that the Complainant’s vehicle had an issue with the AC system. So far as the other issues, these were repaired and rectified by the service centre at cost when he brought the car to the service centre.
22. Based on his observation as discussed above, coupled with his technical knowledge,The expert technical engineer further opined that the Complainant’svehicle had an inherent manufacturing/assembling defect that persisted in the air conditioning, dashboard designing and engine performance due to poor pick-up and overheating, which could not be ignored. He, therefore, suggested as below:-

Considering above stated observations on said vehicle, inherent manufacturing/assembling defects persist in the vehicle air conditioning, dash board design and Engine performance (poor pick-up and overheating) since beginning cannot be ignored.

Therefore I would like to convey my technical conclusion/opinion, strengthen with technical knowledge & observations with considering vehicle history report on above said vehicle, that the concerned dealer/manufacturer should replace the Air-conditioning System complete, Engine timing kit complete with pump, bearings/bushes in engine, flywheel and clutch assembly in complete, also ensure proper engine timing, fitment of mating parts during assembling as per manufacturer specification and using proper tools and tactics.

23. The comprehensive expert opinion given by the technical engineer of a respectable government-authorised institute is sufficient to prove that the Complainant’s car suffered from a defect thatOP-4, the authorised service centre of OP-1, could not rectify. In our view, they could have replaced the AC system of the Complainant’s car after receiving repeated complaints from the Complainant regarding its insufficient cooling, which they chose not to do for reasons best known to them for the smooth functioning of the car. However, the expert technical engineer also clarified in the expert report that he had inspected the vehicle of the Complainant at the odometer reading of 1,35,050 as reproduced below:-
    1. The vehicle Nissan Terrano bearing Registration number. – DL-11-CA 5633, inspected after 135050 (odometer reading) of runs.

24. Thus, undeniably, the Complainant used the car from the day of purchase, i.e., 03.05.2015, until the car was inspected in 2021, running it for more than 1 lakh km. Therefore, it is difficult to fathom that a car with manufacturing defects could have accrued more than 1 lakh km. and is still running. It is beyond our comprehension that it suffered from a manufacturing defect, as claimed by the Complainant.
25. Since OP -1, 2 & 4, the manufacturer marketing and sales unit and authorised service centre of OP-1, are ex-parte, we have no reason to disbelieve the Complainant’s unrebutted and uncontroverted averments qua OP-1, 2 & 4 to the extent that they could not satisfactorily repair the Complainant’s car and he is entitled to be refunded the amount charged from him in carrying out repairs of the defects noticed by the Op Service Centre & observed by the expertwhich they could not satisfactorily remove.
26. OP-3, the seller of the car in question, denied any liability, as OP-3 only sold the vehicle to the Complainant and had no role in repairing or replacing the car. We are of the opinion that OP-3, cannot get away from the fact that the Complainant’s car had the defects from the very beginning and approached OP-3 to get the defects rectified. Hence we find OP-3 is alsodeficient in service.
27. In light of our discussions above, we allow the present complaint and direct the OPs to jointly and severally repair the Complainant’s car and make it roadworthy. They should replace the Air-conditioning System complete, Engine timing kit complete with pump, bearings/bushes in engine, flywheel and clutch assembly in complete, also ensure proper engine timing, fitment of mating parts during assembling as per manufacturer specification and using proper tools and tactics. Or the OPs may alternativelyjointly and severally pay the complainantRs. 2 lakhs for the aforementioned repair inclusive of compensation. The OPs are also directed to jointly and severally pay Rs.10,000/- towards litigation cost.

• Copy of the order be given/sent to the parties as per rule.
• The file be consigned to Record Room.
• Announced in the open Court on 25.10.2024.