Punjab

Ludhiana

CC/14/625

Rohit Jagga - Complainant(s)

Versus

Padam Cars - Opp.Party(s)

16 Sep 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 625 of 08.09.2014

Date of Decision            :   16.09.2015

 

Rohit Jagga, aged 33 years son of Sh.Des Raj Jagga, resident of House No.92, Lajpat Nagar, Ludhiana. 

….. Complainant

 

                                                       Versus

 

1.M/s Padam Cars Pvt. Ltd., G.T.Road, Dhandari Khurd, Ludhiana, through its Authorized Signatory.

2.M/s Padam Cars Pvt. Ltd., Service Centre, G.T.Road, Dhandari Khurd, Ludhiana through its authorized signatory.

3.M/s Padam Cars Pv t. Ltd., G.T.Road, Dhandari Khurd, Ludhiana, through its Manager/Prop./Director.

4.M/s General Motors Pvt.Ltd. (Chevrolet), Chandrapura, Industrial Estate, Halol District Panchamhals, Gujrat, India through its Managing Director/Authorized Signatory.

..…Opposite parties

 

                   (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                       :        Sh.Kunal Gaurav Bajaj, Advocate

For OP1 to OP3              :        Sh.Rajeev Abhi, Advocate 

For OP4                         :         Sh.Chanderhas Yadav, Advocate.

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant Sh.Rohit Jagga filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter referred to as ‘Act’) against the OPs, by claiming that after approach to one of the representative of Ops, he purchased Chevrolet Sail LS TCDi car for Rs.6,68,648/- vide retail invoice No.R01243 dated 15.3.2013. That car was not working properly since the first day of its purchase because it was having number of manufacturing defects. There are several problems in the car which created nuisance from one side to other side of the car. Complainant approached workshop of OP for removal of these defects or to replace the car with new one. Emails and phone calls were given many times, but the matter was dilly dallied. The job sheets of the workshop show that problems were not permanently resolved. OP2 himself claimed that car bears manufacturing defect, which cannot be repaired and complainant may get back the money or get the car replaced by new one because the same was covered with guaranty/warranty. Complainant claims to have suffered lot of mental agony and harassment. When the complainant again approached the Ops with a request to return  sale price  of  the car, insurance and other applicable taxes alongwith compensation, then Ops refused to accept the genuine request. Legal notice dated 24.7.2014 through counsel Sh.Kunal Gaurav Bajaj, Advocate was got served, but to no effect. Reply to that legal notice even not submitted. By pleading deficiency in service and adoption of unfair trade practice on the part of the Ops, the complainant sought direction against Ops to return Rs.6,68,648/- alongwith interest @18% per annum from the date of rejection of claim till date of payment. Compensation of Rs.2,00,000/- on account of harassment and mental agony but legal expenses of Rs.22,000/- and counsel fee of Rs.11,000/- also sought.

2.                          In joint written reply submitted by OP1 to OP3, it is claimed interalia as if complaint is not maintainable because there was no manufacturing defect in the car; complicated questions of law and fact requiring elaborate evidence are involved; complainant is estopped by his act and conduct from filing the complaint; complainant has concealed the material facts, due to which, he is not entitled to any discretionary relief. It is pleaded that after purchase of the car, the complainant got the speakers of his stereo fitted in the 4 doors of the car from outside workshop by making holes in the door panel. Those speakers are of heavy weight, due to which, after plying of the car for few days/few kms, those get loose and started emitting noise. Those speakers were tightened on each and every visit of the car to the workshop. There is only problem of door noise due to the uneven holes made in the door penal due to installation of heavy speakers. Complainant came on 23.7.2013 when the car was having mileage of 8089 kms at the time of first service. At that time, no complaint was lodged by the complainant. The vehicle was duly serviced and thereafter, delivered to the complainant to his satisfaction. That satisfaction was recorded on the job card through endorsement. There was some defect in the coltop i.e. wipers and those were replaced free of costs as per directions of OP4. Thereafter, complainant brought his car on 28.10.2013 for replacing 3 wheel caps and those were replaced. The car was brought again on account of 2^nd wheel cap missing and same was got replaced by OP1 to OP3. When the car again was brought on 9.1.2014 with the complaint of door gap, rear LHS door noise and speaker N/W, then the same complaint was duly attended by disclosing the complainant that complaint has surfaced due to inserting of heavy speakers in 4 doors from  outside the workshop. Those were tightened and noise was removed. The other problems were also addressed at that time. Job card No.009522 dated 9.1.2014 was issued at that time when the car was having mileage of 17276 kms. Noise in the doors was checked and defect rectified. Thereafter, complainant brought his car for running repairs, free service and accidental job and without complaint of manufacturing defect. When the car brought on 15.4.2014 with mileage of 22348 for checking of AC fan noise, then compressor was cleaned and car was delivered to the complainant after rectifying the defect to his satisfaction. Lastly, the car was brought on 5.6.2014 for free service, running repair and accidental jobs. Complainant visited showroom of OP1 to OP3 at Ludhiana for getting test drive of car Chevrolet SAIL and thereafter discussing the facts with his relatives and family members, he purchased the car at his own and not at  the assurances of Ops. Complainant has no locus standi to file the complaint. Car travelled distance of 25171 kms upto 5.6.2014. All the complaints of running repairs were handled to the satisfaction of the complainant. This car met with an accident, due to which, the same was brought for accidental job on 15.4.2014. Job Card No.000664 was issued at that time and sum of Rs.9,398/- was charged for repair of the car. OP4 admittedly is the manufacturer of the car. Each and every other averment of the complaint denied.

3.                In separate written statement filed by OP4, it is claimed that he has been unnecessarily dragged in litigation, despite the fact that there was no manufacturing defect in the vehicle. Vague and general allegations levelled qua manufacturing defect without disclosing the details thereof. Complainant enjoyed the vehicle in question for more than 1 year and 5 months before filing the complaint on 26.8.2014. Manufacturing defect has not been disclosed by the complainant at all. As per warranty agreement, complainant was given right to get the repair work done under warranty free of cost during the warranty period. The warranty agreement specifically barred the replacement of the vehicle or refund of the sale price. Philosophical complaint alleged to be filed without mentioning any kind of defect in the vehicle. OP1 to OP3 are responsible for their act and conduct (if any).

       OP4 does not have vicarious liability of acts of OP1 to OP3. OP4 admittedly is the manufacturer of the car. There is no manufacturing defect pointed out in the car and as such, prayer made for dismissal of complaint, specifically when the complainant never approached OP4 for redressal of his grievance. OP4 on inquiries got the knowledge as if vehicle in question covered about 30000 kms, which shows that it travelled a considerable distance and as such plea of refund of the amount cannot be raised by the complainant. There is no unfair trade practice or deficiency in service on the part of OP4.

4.                Complainant to prove his case tendered his affidavit Ex.CW1 alongwith documents Ex.C1 to Ex.C32 and then closed the evidence.

5.                On the other hand, counsel for the OP1 to OP3 tendered in evidence affidavit Ex.RA1 of Sh.Gagan Brar, Cluster Head of Padam Cars alongwith documents Ex.R1 to Ex.R36 and thereafter, closed the evidence.

6.                 Similarly, counsel for OP4 tendered in evidence affidavit Ex.OP4/A of Sh.Sanmukh Singh Khaira, Zonal Manager of OP4 and after tendering documents Ex.OP4/1 and Ex.OP4/2, closed the evidence.

7.                When the case was posted for arguments, then complainant filed an application for additional evidence. That application for additional evidence also decided through the succeeding paras of this order.

8.                Written arguments submitted by OP1 to OP4. It is not submitted by the complainant. Arguments on this application were heard along with arguments on main case. Records gone through minutely. 

   “ON APPLICATION FOR ADDITIONAL EVIDENCE”

9.                Application for additional evidence filed by complainant by claiming that factum of manufacturing/inherit defect is to be proved and that is why placement of the expert opinion on record is essential. So, complainant sought permission to lead the additional evidence for tendering expert opinion.

10.              That application opposed by filing reply by claiming that complainant after availing three adjournments closed evidence, but despite that he did not produce the evidence now sought to be produced. Name of the expert sought to be examined not mentioned and nor the expertise opinion produced on record along with the application. No reason assigned as to what evidence now sought to be lead, which could not be produced earlier. The evidence sought to be produced is neither essential nor required for adjudication of the complaint. Ops also had closed their evidence and case was fixed for arguments on 28.04.2015, when the application at belated stage was filed for filling up lacuna. It is claimed that prejudice will be caused to the Ops, if application allowed.  So, OP1 to OP3 through their reply sought dismissal of application.

11.              OP4 filed separate reply by claiming that application at the stage of addressing of arguments is not maintainable, particularly when there is no provision under the Act to permit leading of additional evidence. Complainant was to lead evidence in affirmative and as such he cannot be permitted to fill lacuna by filing this frivolous application. Moreover, the application alleged to be filed for delaying the proceedings. It is claimed that vehicle in question already met with an accident on 5.6.2014 and as such, no expert can disclose about manufacturing defect in the vehicle. Moreover, the car had already travelled distance of 25000 Kms as on 5.6.2014 and as such, question of manufacturing defect in the car does not arise.

12.                        As per law laid down in cases United India Insurance Company Limited vs. Gupt Ram-2006(3)CLT-441(H.P.State Consumer Dispute Redressal Commission, Shimla); National Insurance Company Limited vs. Sundri Devi and another-IV(2006)CPJ-356(Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla); Naresh Kriplani vs. George Abraham and others-III(2006)CPJ-378(N.C.), permission to adduce additional evidence at belated stage of arguments should not be granted, when the evidence sought to be produced by way of additional evidence is not essential for just decision of the complaint, particularly when plausible explanation for delay in producing evidence earlier even not offered. Complainant has not mentioned the name of expert to be examined and nor detail and kind of manufacturing defect pointed out in the complaint or in the evidence earlier adduced by the complainant and as such, submission advanced by counsel for Ops has force that application for additional evidence has been filed on vague and general allegations, due to which, the same should not be allowed. Complainant has claimed manufacturing defect in the vehicle through filed complaint and as such, he was fully aware of the type of evidence required to be lead, particularly when he is represented by his counsel. Manufacturing defect can be proved by examining expert or by producing the record of job cards. Voluminous record of job cards had already been produced on record by complainant and from that it cannot be made out as to what were the defects found  by the Ops at the time of visit of the vehicle to workshop. That evidence will help in adjudicating as to whether there was manufacturing defect in the vehicle actually or not. The car had already travelled distance of 25171 kms on 5.6.2014 as revealed by Ex.C19 and as such, manufacturing defect in the car cannot be inferred because such distance cannot be travelled by a car having manufacturing defect. This car went for accidental job service in the workshop of Ops on 16.4.2014 as revealed by entry No.6 contained in Ex.R1 and as such after the accident, some defects may have surfaced. Moreover, noise problem was found because of getting of stereo speakers fitted from outside as per entry no.3 of Ex.R1 and as such, evidence brought on record throws light that manufacturing defects were not the cause of noise problem or of steering problem or A.C.problem. As complainant was fully aware of the evidence adduced by Ops and by himself and as such, application with vague allegations and without pointing out the kind and magnitude of the manufacturing defect certainly have been filed for delaying the proceedings. Opinion of the expert at this stage qua manufacturing defect will be a procured opinion and as such, application for additional evidence filed by complainant merits dismissal and the same is hereby dismissed.

“ON MERITS OF COMPLAINT”

13.                        Admittedly, the vehicle in question was purchased by the complainant on 15.3.2013 for consideration of Rs.6,68,648/- vide invoice Ex.C2=Ex.R36. Ex.C1 is copy of driving license of complainant, whereas Ex.C3 is copy of insurance cover note and Ex.C4 that of registration certificate of said car bearing registration No.PB-10-EB-7584.Ex.C5 is copy of registration details, whereas Ex.C6 to Ex.C19, Ex.C19A to Ex.C19C and Ex.C21 to Ex.C30 are copies of job cards produced by the complainant. Ex.C20 is copy of emails correspondence. Ex.C31 is the legal notice sent by the complainant through counsel on 24.7.2014. Postal receipts Ex.C32 are also produced on record to show that this notice was sent through registered post on 26.7.2014. Ex.R1 is copy of detailed computerized generated sheet showing the kind of repairs done with charges and details of amount etc. Ex.R2 to Ex.R34 are also job cards/bills produced by Ops.The bone of contention remains as to whether the repairs were running repairs or were necessitated due to fitting of four heavy speakers in the door of the vehicle from outside the agency or not.

14.              Ex.C6, the job card dated 2.4.2013 shows that vehicle travelled distance of 1196 Kms by that time, when replacement of sealing kit and  windshield ASM after charging Rs.1181.10P and Rs.2887.14P was done.However no amount was charged. Ex.C7 is the bill dated 20.4.2013 showing that service of the vehicle in question was done without charging anything. Mileage at that time was of 2106 Kms.   Ex.C8, the job card dated 17.6.2013 shows that vehicle in question travelled distance of 3809 Kms by that time, when fitting of Horn ASM-Single(Low Note); Tape-FRT S/D and Tape FRT S/D was done. Ex.C9, the job card dated 3.7.2013 shows that vehicle travelled distance of 6932 Kms when repair of parts of Panel, AIR INL GRL-LH and Panel, AIR INL GRL-RH was done. Engine mount replacement without charging anything was done on 23.7.2013 through job card Ex.C10, at that time, when the vehicle travelled distance of 8089 Kms. Engine mount replacement is done for absorbing any mount between the engine        and car frame. Engine mounts are simply brackets, mostly metal, that attach to the engine on one end and car engine body on the other. These mounts are designed to keep the engine in place. The engine mount have to be quite soft like small cushions absorbing impact between engine and car frame, so that    the people in the cabin can barely feel what is going on upfront. So virtually the proper engine mount reduces the engine vibrations. In view of contents of Ex.C10, it can be said that engine mount replacement was virtually done on 23.7.2013 for reducing the vibrations and augmenting the comfort of the person sitting in the car. By that time the car travelled distance of 8089 Kms which was a considerable distance. However, earlier referred repairs were of service or of horn or of tape or of windshield and of sealing kit and panel and all those  cannot be considered on account of manufacturing defect. Ex.C10 and Ex.C11 connotes one and same thing. Ex.C12, job card dated 27.7.2013 shows as if repair of windshield RHS+LHS Part N/A + COWL Top adjustment was done at the time when the car travelled distance of 8249 Kms. This repair was done without charging anything from the complainant. Even the job card Ex.C13 dated 16.8.2013 shows as if fitting of Panel.AIR INL GRL-LH was done at the time when the car travelled distance of 9576 Kms. Next repair through bill Ex.C14 dated 23.11.2013 was done of door weather strip part N/A store. Second free service was done through Ex.C14. Genuine charges of engine oil and filter kit oil was accepted from the complainant through Ex.C14. Ex.C15 is the bill dated 31.12.2013 showing that car travelled distance of 15813 Kms and repair of weather strip, FRT S/D WDO – RH and LH as well as blade, WSW-RH and element ASM-A/CL etc was done at that time by charging of Rs.228/- from the complainant. Ex.C16 is the bill dated 9.1.2014 qua the running repair, whereas Ex.C17 is the bill dated 28.2.2014 showing as if repair was done for problem of steering wheel replacement and doors handle paint only. Question of painting handle or of replacement of steering wheel arises only, if the car would have touched some other object. No charges for steering wheel replacement were Collected from the complainant, while issuing bill Ex.C17 dated 28.2.2014. So, virtually replacement of steering wheel took place at the time when the car travelled distance of 19683 Kms after about 11 months of its purchase. Ex.C18, the bill dated 7.5.2014 shows that after travelling distance of 23725 Kms, repair by fitting Panel AIR, INL-GRL RH and LH, weather strip ASM FRT SD Body etc., was done. A car who travelled so much distance of 23725 Kms with such repairs definitely was not having any manufacturing defect. Ex.C19, the bill dated 5.6.2014 shows that it is a bill of running repair, but work of door noise problem was kept pending. Replacement of starter ASM through job card Ex.19A was done. Ex.C19B is the bill of running repair of date 11.1.2015, whereas, Ex.C19C is the job card dated 27.1.2015 showing that work of door noise job remained pending, otherwise work of running repair and of front side door check link replacement and of engine wiring harness assembly etc., was done. Ex.C21 is the job card showing as if complainant lodged complaint regarding rear RHS door handle and Cowl Top replacement u/w noise and AC air filter cleanliness.Ex.C22 is the job card dated 20.4.2013 showing as if customer complained of bad smell found coming out from A.C and there was Cowl Top noise. Problem of fuel gage sometime even was lodged. Ex.C23 is the job card dated 21.5.2013 which again pertains to resolving of problem of window noise, FF side noise and of LHS paint check. Ex.C24  the job card dated 2.7.2013 shows as if problem of noise again was complained of. Even through job card Ex.C25 problem of Cowl top noise and noise from front RF was lodged. Through job card Ex.C26 of 29.7.2013 problem of door glass play adjustment, RHS noise rear wind glass etc., was lodged. Same problems even projected through job card Ex.C28 of 23.11.2013, Ex.C29 of 25.11.2013 and Ex.C30 of 9.1.2014. So, all the documentary evidence produced on record by the complainant  shows that problem of noise emitting from doors was projected time and again.

15.              Ex.C20, the email dated 4.12.2013 shows as if complainant was intimated that OP concern  will remain in touch with the team to ensure that each and every point/problem as mentioned by the complainant is taken care of. Through Ex.C20, complainant expressed his grief due to purchase of the car in question because of Cowl top problem and of the noise problem. On 6.9.2013, complainant was intimated that as he has got the speaker externally fitted, so he should contact the concerned vendor, who fitted the speakers in the doors. So, entire correspondence produced by the complainant itself reflects that problem of door noise started because of fitting of speakers in the doors from outside the agency. The replacement of the engine mount was done without charging anything within the warranty period and as such virtually that defect was cured as per terms and conditions of the warranty. Detailed computerized generated sheet Ex.R1 shows as if complainant was disclosed about the problem of noise started having erupted due to fitting of stereo and speakers from outside the agency. Accidental job was done on 15.4.2014 is a fact born from perusal of item No.6 of Ex.R1. So, whatever the job pertaining to noise problem was kept pending, but the same was because of fault of the complainant in getting stereo and speakers fitted from outside agency.

16.              Complainant has not disclosed the details of manufacturing defects in the vehicle in question in the complaint at all and as such, allegations in that respect are general and vague. Submission of counsel for OP4 in that respect has force. So, virtually complainant seeking replacement of vehicle as per his wish. OP4 is the manufacturer and as manufacturing defect not established and as such, certainly OP4 is not liable. Manufacturing defect is one which arises on account   of   short  coming  in product  resulting  from  its                          design and specification. Such short coming/defect not pointed out and as such, certainly submission advanced by counsel for OP4 has force that complainant failed to prove the manufacturing defect in the car. Moreover, the car has travelled long distance of 27000 Kms within a short span of 2 years. No car can travell such long distance, if really there is a manufacturing defect in the    same. That circumstances  goes against the complainant.

17.              Terms of Standard Limited Warranty Coverage Ex.OP-4/1 provides that retailer of Chevrolet will make necessary repairs, using new, re-conditioned or re-manufactured parts with a view to correcting any defect covered by warranty. So, clause 1 of Ex.OP-4/1 itself provides that warranty provide for necessary repairs only and not for replacement of vehicle. So, submission advanced by counsel for complainant has no force that Ops should be held liable to replace the vehicle. Rather, the terms of warranty provides for carrying out the necessary repair and those had been done from time to time as discussed in the above pointed job cards and as such, there is no deficiency in service on the part of Ops. 

18.              As per law laid down in case Jay Malhotra vs. M/s Maruti Udyog Ltd. and another-III(2002)CPJ-95(N.C.), if vehicle extensively used for 7 months, then manufacturer not liable to replace or refund the price amount. Same is the position before us particularly when the vehicle has travelled more than 27000 Kms in a span of 2 years of its purchase. In this case before us, complainant has failed to prove in his evidence, the  manufacturing defect in the car, but record of job cards establishes that problems arising from normal wear and tear were properly attended by Ops and as such, after extensive use of the vehicle by the complainant, arguments of manufacturing defect in the car, is not sustainable at all. For holding this view, we are fortified by the law laid down in case General Motors India Pvt. Ltd. vs. G.S.Fertilizers (P)Ltd & another-II(2013)CPJ-72(N.C.), which lays in case complainant failed to produce any evidence including that of an expert to indicate the manufacturing defect and problem have been attended promptly, then due to extensive use of the vehicle, deficiency in service on the part of manufacturer or dealer cannot be inferred. Even after going through ratio of case Baldev Raj and sons vs. Ram Kumar and another-II(2013)CPJ-42A(CN)(H.P.), it is made out that when repair of damaged shocker carried out during warranty period without charging anything during pendency of complaint, then compensation and litigation costs cannot be awarded. As per law laid down in case Cicily Kallarakkal vs. Dealer, Divya Automobiles & others-III(2012)CPJ-14(Kerala State Consumer Disputes Redressal Commission, Thiruvanathapuram), in case, defect of a part repaired by fixing new spare parts, then the same cannot be treated as manufacturing defect. In this case also, defective engine mount replacement was done without charging anything and as such, manufacturing defect cannot be held to be proved. When no expert evidence adduced for proving  manufacturing defect, then complainant not entitled for compensation is the proposition of law laid down in cases of H.M.T. Limited and another vs. Smt. Jubeda Bee-I(2000)CPJ-54(Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal); Dagadu Bhairu Bhosale vs. Scooter India Ltd and another-II(2006)CPJ-143(N.C.) and Ajitha Chit Funds (P) Ltd. vs. Tata Engineering and Locomotive Co.Ltd. & others-I(2007)CPJ-204(N.C.). Ratio of all these cases is applicable to the facts of the present case as discussed above.

19.              When defects duly rectified by recording satisfactory note, then manufacturing defect in the vehicle cannot held to be proved as per law laid down in case Sita Ram vs. Manager, Harsh Auto Care & another-III(2002)CPJ-313(N.C.).  On the job cards produced by the complainant and Ops mention made regarding satisfactory job being done and as such ratio of above cited case applicable to the facts of the present case.

20.              In view of above observations, we hold that the complainant failed to prove the manufacturing defect in the vehicle. Rather, complaint has been filed on vague and general allegations without disclosing the details of manufacturing defects or irreparable defect itself. So, we do not find any deficiency in service on the part of the Ops.

21.              Therefore, as a sequel of the above discussion, the present complaint alongwith application for additional evidence merits dismissal and same is hereby dismissed with no order as to costs. Copies of this orders be made available to the parties free of costs as per rules.

14.                        File be indexed and consigned to record room.

 

 

                             (Sat Paul Garg)                            (G.K.Dhir)

                              Member                                        President

Announced in Open Forum

Dated:16.09.2015

Gurpreet Sharma.