DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Shobha Sharma w/o Rajesh Sharma, r/o H.No.3279, Sector 23-D, Chandigarh, presently residing at House No.64, Sector 18-A, Chandigarh.

                                                 ---Complainant.

V E R S U S

1]       Oberoi Car Care, through its prop./ Partner, SCF 127, Sector 18-A, Chandigarh.

2]       Cross Link Wheels Electronics Pvt. Ltd., through its Director, Plot No.36, Batholi Kalan, Baddi, Himachal Pradesh.

3]       Surabhi Automotive International, through it Prop./ Partner, Regd. Office & Works, A/16/A, Street No.4/O, Anand Parbhat Industrial Area, New Delhi – 110 005. (Manufacturers of Traxon Power Window Regulators).

---Opposite Parties.

BEFORE:          SH. LAKHMAN SHARMA               PRESIDENT

MRS.MADHU MUTNEJA             MEMBER

                    SH.JASWINDER SINGH SIDHU          MEMBER

Argued By:  Sh. Arun Kumar, Advocate for the Complainant.

                                Sh. Ashmeet Singh, Prop. O/o Opposite Party No.1.

                                Sh. Ajay Singla, Advocate for Opposite Party No.2.

                                None for Opposite Party No.3.

PER JASWINDER SINGH SIDHU, MEMBER

1]           Complainant has filed the present complaint against the Opposite Parties, on the ground that the Complainant who owned a new Santro car which was purchased from Ultimate Automobiles on 24.7.2009 and got the below mentioned gadgets and accessories from Opposite Party No.1 on 25.07.2009, fitted. The same are mentioned as [a] Central Locking for Rs.3500/- [b] Power Window Regulator for Rs.4,000/- [c] Gear lock for Rs.1000/- and [d] Side beeding with 3M tape for Rs.500/-. The products mentioned at [a] and [c] are manufactured by Opposite Party No.2, whereas the gadget captioned [b] is manufactured by Opposite Party No.3. The Complainant claims that on 11.8.2009 there was a problem in starting the vehicle so a request was made to Ultimate Automobiles who arranged a service van for onsite inspection. On examination a service engineer from the Exide Company whose battery was installed in the vehicle was called as the brand new battery of the vehicle had got discharged. A standby battery was installed and the entire wiring of the vehicle as well as the power window system and central locking system were tested. In order to make sure that there was no fault with the wiring of the vehicle the gadgets were disconnected and no fault was found with the wiring of the vehicle. Subsequently it was found that the battery of the vehicle had got discharged due to the gadgets only. Thereafter, Complainant requested Opposite Party No.1 to rectify the fault with the gadgets installed by it. After repeated requests and reminders the service team of Opposite Parties No.2 & 3 visited to fix the problem in the car on 20.8.2009.

              There after the vehicle of the Complainant again suffered the same problem on 20.10.2009 and once again the same procedure was followed. Thereafter, the gadgets were disconnected so as to get rid of the problem. The Complainant again made a request on different occasions i.e. 13.11.2009, 8.1.2010, 9.7.2010 and 10.7.2010. On each of these occasions, the Opposite Parties No.2 and 3 again and again made small rectifications but failed to remove the fault completely. The Complainant alleges that it was because of the tampering of the original wires of his vehicle by the technicians of Opposite Parties No.1 to 3 while installing the faulty gadgets; he was made to suffer for so many days. At the same time this tampering with the wiring system has exposed the vehicle to short circuit as well as loss of warranty from the car manufacturer. Thus, alleging deficiency in service as well as harassment and agony on the part of the Opposite Parties No.1 to 3 has sought the directions of this Forum to:-

[a] for removal of the faulty central locking & power window system;

[b] Refund of the amount spent in lieu of the purchase of these two gadgets OR be replaced with gadgets of some other company;

[c] Compensation to the tune of Rs.2,00,000/- for mental torture, harassment and damage to reputation.

[d] Rs.50,000/- towards litigation charges;

2]           On notice, the Proprietors of Opposite Parties No.1, 2 & 3 appeared in person on 9.12.2010 and stated that there are chances of compromise. Consequently, the complaint was put up before the Lok Adalat vide order dated 9.12.2010. But as the parties failed to reach a compromise, the case was referred back to the mainstream vide order dated 24.12.2010.

3]           The Opposite Parties finally filed their respective replies.  

4]           Opposite Party No.1 has filed its reply/ version contesting the claim of the Complainant and has taken preliminary objections to the effect that the present complaint is misconceived, without reasonable basis, not maintainable in the present form, as the Complainant has failed to come to this Forum with clean hands. The complaint also deserves to be dismissed as the same is based on incorrect and wrong facts and is an abuse of the process of law.

              It is also mentioned that the answering Opposite Party has no liability whatsoever to compensate as the compensation is restricted only to make good the loss or damage suffered and the Complainant has not proved this aspect in totality.

              On merits, Opposite Party No.1 while replying to Para No.1 & 2 claims that the same does not require any reply. Even in reply to para 3 the averments of the complaint are denied as false and incorrect as the Complainant had purchased these gadgets after having scouted for the same in the open market and no assurance was handed out to the Complainant as mentioned in para 3. While replying to para 4 the same is termed to be false and frivolous and further states that at all times Complainant was provided satisfactory services and even the gadgets fitted were working as per the satisfaction of the Complainant at the time of installation. In reply to para 5 only the aspect that each time the Complainant approached Opposite Party No.1 for his problem, Opposite Party No.1 had informed the other Opposite Parties about the same. While replying to para 10 Opposite Party No.1 submit that the repairs required for these gadgets were due to the mishandling on the part of the Complainant and there was no other problem with them. Furthermore, the gadgets had become defective due to the repeated mishandling by the Complainant and not because of any unsatisfactory service on the part of Opposite Party No.1.

              In reply to para 17 answering Opposite Party mentions that it had offered the Complainant to remove the faulty equipments and refund the amount; whereas the Complainant refused this offer by saying that the said service be done at his residence which was not possible due to the lack of labour and proper equipment outside the shop. Furthermore, the answering Opposite Party claims that as the Complainant has not suffered any loss or damage hence the demand of compensation is totally out of context and no such request needs to be entertained by it as the equipment is beyond its warranty as of today.   

5]           Opposite Party No.2 & 3 in their respective replies have taken nearly similar objections. While taking preliminary objections answering Opposite Parties have cited the invoice as annexed at Page 10, which is in the name of Rakesh Sharma claiming that the Complainant is not the actual buyer and hence, the present complaint is not maintainable on the ground that she does not fall under the definition of consumer. In the same breadth it is also mentioned that as these equipments were purchased from Opposite Party No.1 hence there is no privity of contract between the answering Opposite Parties as no consideration amount is received by them. The Opposite Parties pray for the dismissal of the complaint on the aforesaid grounds.

              On merits, Opposite Party No.2 claims that as per the details of the complaint and the documents attached there was a repeated call to the Exide Service Van as there was a problem with the battery installed with the car and not with the equipment as stated by the Complainant. It is further mentioned that on different dates when the Complainant claims to have lodged the complaints she is actually referring the annexres at Page 15, 16, 17 & 18 and the same pertains to the Van Service Sheets of Exide Company. Opposite Party No.2 claims that it was only on one single occasion that on 10.7.2010 a problem with their equipment was registered with them and the same was checked and repaired to the complete satisfaction of the Complainant, as the same being under warranty. It is also mentioned that no amount was charged for this repair as well as for the replaced parts which is clear from annexure at page 20 submitted by the Complainant.  Rest all other averments of the complaint are denied and defended in strong terms.  The answering Opposite Party No. 2 further states that the present complaint has been filed with a malafide intention of causing unnecessary loss to it as no case of deficiency in service is made out against them and pray for the dismissal of the present complaint with heavy cost in its favour.  

6]           The Opposite Party No.3 while replying on merit has cited the clause mentioned in it warranty card wherein under terms of warranty it is mentioned that the product carries a limited warranty and in the event of any liability arising due to the use of this product it shall not exceed the cost of the product paid by the purchaser.  Secondly, all claims or disputes will be subject to the Delhi Courts/ Forums jurisdiction only. The answering Opposite Party claims to have offered either to pay the value of the purchased goods or to replace the same with a new one through its authorized representative, but claims that the Complainant refused to accept the same because of some oblique motives. It is also mentioned that the equipment has started to give problem due to the mishandling by the Complainant herself. Thus terming the present complaint to be frivolous, vexatious and concocted pray for its dismissal against the Opposite Party No.3 with heavy cost. 

7]           Parties led their respective evidences.

8]           Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the ld. Counsel for the parties, we have come to the following conclusions.

9]           It is an admitted fact that the husband of the Complainant had purchased aforementioned gadgets and accessories from Opposite Party No.1 and the same were installed in the vehicle which is in the name of his wife. The objection with regard to the Complainant not falling under the definition of consumer as the invoice mentions the name of her husband Rajesh Sharma. The same is clear from document annexed at page no. 10 of the complaint. It is a settled law that the “Consumer” means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment, when such use is made with the approval of such person but does not include a person who obtains such goods for re-sale or for any commercial purpose and the same enshrined under Section 2(d)(1) of the Consumer Protection Act, 1986. Hence, in the present case, the Complainant is a rightful consumer as per Consumer Protection Act, 1986.

10]          It is also noticed that there are only two equipments namely Central Locking System and Power Window Regulator purchased by paying Rs.3550/- and Rs.4000/- from Opposite Party No. 2 and 3 respectively which are alleged to be faulty. It is also noticed that it was only Central Locking System which has been attended to by the Manufacturer (Opposite Party No.2) and is established by the Service Job Card annexed at Page 20 of the complaint. However, there is nothing to believe the Opposite Party No. 3 that they had at any point of time attended to the complaint of the Complainant with regard to their equipment i.e. Power Window Regulator.

11]          It is also noticed that Opposite Party No. 3 even though as per their own disclosure have not looked into the fault with the equipment, till date, but had offered to refund the amount charged by their Distributor (Opposite Party No.1) or to replace the same, with a new one. A similar offer has also been made by Opposite Party No. 2 in their reply/ version even though the equipment belonging to Opposite Party No. 2 has been repaired free of cost even after the expiry of the warranty period.

12]          The Complainant though has repeatedly called on to Exide Service Van in the event of non-starting of his Vehicle and on each occasion the battery of the car had drained due to the fault of either wrong installation of these equipments or due to the inherent problem with them. It is also established that the Complainant did not replace the battery as on all these occasions the Sr. No. of the battery is mentioned as 335247, and it required repeated charging of the battery so as to make the car operational.    

13]          In the present circumstances, we feel that the offer of Opposite Parties No. 1 to 3 of making the refund of the amount that the Complainant had spent for the purchase of these two faulty equipments or the replacement of these equipments with the new ones is very much a valid offer. It is also noticed that the Opposite Parties were very much in a conciliatory mood from the very beginning and the same is reflected from the order dated 9.12.2010, when the present complaint was put before the Lok Adalat, at the request of the parties. Under such circumstances, we feel that no certain deficiency in service is made out against the Opposite Parties. However, considering the offer made by the answering Opposite Parties, we direct them to jointly and severally:-

[a] Pay Rs.7,550/- towards the cost of equipments;

[b]          Rs.3,000/- as cost of litigation;

14]          The above said order shall be complied within 30 days of its receipt; thereafter, the Opposite Parties shall be liable for an interest @18% per annum on Rs.7,550/- till it is paid, besides for the cost of litigation.

15]          Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

24^th January, 2012.                                                                   

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/­

 (JASWINDER SINGH SIDHU)

MEMBER